Malloy v. Preslar ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance with
the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1371
Filed: 15 September 2015
Anson County, No. 11 CVS 404
RAYMOND MALLOY and LISA MALLOY, Plaintiffs
v.
E. MICHAEL PRESLAR and KATHY N. PRESLAR, individually and d/b/a
PRESLAR FARMS, and TYSON CHICKEN, INC.,1 Defendants
Appeal by plaintiffs from order entered 5 October 2012 by Judge William R.
Pittman in Anson County Superior Court. Heard in the Court of Appeals 21 April
2015.
The Law Offices of William K. Goldfarb, by William K. Goldfarb, and The
Duggan Law Firm, PC, by Christopher M. Duggan, for plaintiffs-appellants.
McAngus, Goudelock & Courie, P.L.L.C., by John E. Spainhour, for defendant-
appellee Tyson Farms, Inc.
DAVIS, Judge.
Raymond and Lisa Malloy (collectively “Plaintiffs”) appeal from the trial
court’s order dismissing their complaint against Tyson Farms, Inc. (“Tyson”)
1 While the caption in the trial court’s 5 October 2012 order giving rise to this appeal names
“Tyson Chicken, Inc.” as a defendant, this entity was listed in error. Tyson Farms, Inc. — rather than
Tyson Chicken, Inc. — was the defendant to whom the trial court’s order was referring. As noted infra,
Plaintiffs voluntarily dismissed Tyson Chicken, Inc. from this action prior to the trial court’s entry of
the 5 October 2012 order. Therefore, when we refer in this opinion to Defendant “Tyson,” we are
referring to Tyson Farms, Inc.
MALLOY V. PRESLAR
Opinion of the Court
pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. After
careful review, we affirm.
Factual Background
We have summarized the pertinent facts below using Plaintiffs’ own
statements from their complaint, which we treat as true in reviewing the trial court’s
order of dismissal under Rule 12(b)(6). See, e.g., Stein v. Asheville City Bd. of Educ.,
360 N.C. 321, 325, 626 S.E.2d 263, 266 (2006) (“When reviewing a complaint
dismissed under Rule 12(b)(6), we treat a plaintiff’s factual allegations as true.”).
Raymond Malloy (“Raymond”) was employed by Davis Mechanical, Inc. (“Davis
Mechanical”) to deliver feed for Tyson to real property owned by Michael and Kathy
Preslar and their company, Preslar Farms (collectively “the Preslars”). Upon
delivery, Raymond was required by Tyson to place a delivery ticket stamped with a
seal into a designated mailbox on the Preslars’ property.
After delivering feed to the Preslars on 19 August 2008, Raymond placed a
delivery ticket into the designated mailbox and was immediately thereafter stung
numerous times by hornets. Unbeknownst to Raymond, there was a hornets’ nest on
the back of the mailbox which he had apparently disturbed when he opened and
closed the mailbox. The hornets’ stings triggered an allergic reaction, causing
Raymond to suffer respiratory arrest.
-2-
MALLOY V. PRESLAR
Opinion of the Court
On 17 August 2011, Raymond and his wife, Lisa Malloy (“Lisa”), filed a
negligence action in Anson County Superior Court against Tyson, Tyson Chicken,
Inc., Tyson Breeders, Inc., Tyson Poultry, Inc., Tyson Sales and Distribution, Inc.,
and the Preslars seeking monetary damages for Raymond’s personal injuries and for
Lisa’s loss of consortium. On 21 May 2012, Plaintiffs voluntarily dismissed Tyson
Chicken, Inc., Tyson Breeders, Inc., Tyson Poultry, Inc., and Tyson Sales and
Distribution, Inc. pursuant to Rule 41 of the North Carolina Rules of Civil Procedure.
On 27 October 2011, Tyson filed an answer to the complaint, and on 17 August
2012, Tyson filed a motion to dismiss pursuant to Rule 12(b)(6). The Preslars moved
for summary judgment pursuant to Rule 56.2
A hearing on the two motions was held on 1 October 2012 before the Honorable
William R. Pittman. On 5 October 2012, the trial court entered an order granting
Tyson’s motion to dismiss and denying the Preslars’ motion for summary judgment.
Plaintiffs appealed the trial court’s ruling as to Tyson to this Court.
In an opinion filed 2 July 2013, we noted that Plaintiffs’ appeal was
interlocutory and that we lacked appellate jurisdiction over the appeal in its entirety.
We determined that of the various negligence claims asserted against Tyson in
Plaintiffs’ complaint, only the claim premised on the existence of an agency
relationship between Tyson and the Preslars affected a substantial right and,
2Because the Preslars’ motion is not contained in the record on appeal, the date of the motion
is unknown.
-3-
MALLOY V. PRESLAR
Opinion of the Court
therefore, was immediately appealable. Malloy v. Preslar, __ N.C. App. __, __, 745
S.E.2d 352, 355 (2013) (“Malloy I”). Upon reaching the merits of that issue, we
concluded that “the trial court did not err in granting Tyson’s motion to dismiss the
claim based on agency.” Id. at __, 745 S.E.2d at 356.
Plaintiffs subsequently took a voluntary dismissal of their claims against the
Preslars on 29 August 2014. Plaintiffs then filed a new notice of appeal on 29
September 2014, seeking review of the trial court’s dismissal in its 5 October 2012
order of their claims against Tyson that were not addressed in Malloy I.
Analysis
Because Plaintiffs have dismissed their claims against the Preslars, the trial
court’s 5 October 2012 order can now be deemed a final judgment. See Curl v. Am.
Multimedia, Inc., 187 N.C. App. 649, 653, 654 S.E.2d 76, 79 (2007) (“We conclude
that, following the dismissal of Plaintiffs’ remaining claims, their appeal was no
longer interlocutory.”). For this reason, we possess appellate jurisdiction over this
appeal.
“On appeal of a [Rule] 12(b)(6) motion to dismiss, this Court conducts a de novo
review of the pleadings to determine their legal sufficiency and to determine whether
the trial court’s ruling on the motion to dismiss was correct.” Podrebarac v. Horack,
Talley, Pharr, & Lowndes, P.A., __ N.C. App. __, __, 752 S.E.2d 661, 663-64 (2013)
-4-
MALLOY V. PRESLAR
Opinion of the Court
(citation omitted). In Malloy I, we classified Plaintiffs’ arguments as to Tyson’s
liability as falling into three categories:
In the instant case, plaintiffs contend that (1) plaintiffs
have stated a cause of action of negligence against Tyson,
because Tyson knew of a hazardous condition and failed to
warn plaintiff; (2) Tyson owed a duty to plaintiff, just as a
contractor owes a duty to warn subcontractors of known
dangers; and (3) plaintiffs alleged that the Preslars were
agents of Tyson.
Malloy I, __ N.C. App. at __, 745 S.E.2d at 355.
As noted above, we addressed only the third argument in Malloy I, affirming
the trial court’s dismissal of Plaintiffs’ claim against Tyson based on principles of
agency. Id. at __, 745 S.E.2d at 355-56. Thus, under the law of the case doctrine,
Plaintiffs’ claim grounded in principles of agency has been conclusively resolved. See
Creech v. Melnik, 147 N.C. App. 471, 473-74, 556 S.E.2d 587, 589 (2001) (“Under the
law of the case doctrine, an appellate court ruling on a question governs the resolution
of that question both in subsequent proceedings in the trial court and on a subsequent
appeal, provided the same facts and the same questions, which were determined in
the previous appeal, are involved in the second appeal.”), disc. review denied, 355 N.C.
490, 561 S.E.2d 498, 498-99 (2002).
Therefore, in the present appeal, we need address only the two remaining
theories of liability as to Tyson: (1) that Tyson failed to warn Raymond of a hazardous
condition on the Preslars’ land despite Tyson’s actual knowledge of the hazardous
-5-
MALLOY V. PRESLAR
Opinion of the Court
condition; and (2) that Tyson should be held liable to Plaintiffs on a theory of liability
analogous to a contractor’s duty to warn a subcontractor of a known danger. We
address each contention in turn.
With regard to the first theory, Plaintiffs’ complaint does not allege that Tyson
had actual knowledge of the presence of the hornets’ nest on the Preslars’ property
prior to Raymond’s injury. Rather, the complaint alleges actual knowledge only on
the part of the Preslars and attempts to impute such knowledge to Tyson under a
theory of agency, a theory that — as discussed above — has already been rejected by
this Court in Malloy I. Therefore, Tyson cannot be held liable under the theory that
it failed to warn Raymond of a known hazardous condition given the absence of an
allegation by Plaintiffs that Tyson actually possessed knowledge of the existence of
that condition. See Oberlin Capital, L.P. v. Slavin, 147 N.C. App. 52, 56, 554 S.E.2d
840, 844 (2001) (“When the complaint fails to allege the substantive elements of some
legally cognizable claim, or where it alleges facts which defeat any claim, the
complaint must be dismissed.”).
As for Plaintiffs’ final theory of liability, Plaintiffs erroneously attempt to
analogize the relationships at issue here to that of a general contractor and
subcontractor. This argument fails for a number of reasons — most basically because
nowhere in their complaint do Plaintiffs allege that a contractor-subcontractor
-6-
MALLOY V. PRESLAR
Opinion of the Court
relationship existed between Tyson and Davis Mechanical. Nor would the facts of
this case support such a characterization of their relationship.
N.C. Gen. Stat. § 87-1 specifically defines a general contractor as follows:
For the purpose of this Article any person or firm or
corporation who for a fixed price, commission, fee, or wage,
undertakes to bid upon or to construct or who undertakes
to superintend or manage, on his own behalf or for any
person, firm, or corporation that is not licensed as a general
contractor pursuant to this Article, the construction of any
building, highway, public utilities, grading or any
improvement or structure where the cost of the
undertaking is thirty thousand dollars ($30,000) or more,
or undertakes to erect a North Carolina labeled
manufactured modular building meeting the North
Carolina State Building Code, shall be deemed to be a
“general contractor” engaged in the business of general
contracting in the State of North Carolina.
N.C. Gen. Stat. § 87-1(a) (2013). A subcontractor is statutorily defined as “any person
who has contracted to furnish labor or materials to, or who has performed labor for,
a contractor or another subcontractor in connection with a construction contract.”
N.C. Gen. Stat. § 44A-25(6) (2013).
This case does not involve a construction project. Rather, the contract at issue
here was for the delivery of chicken feed. Accordingly, Plaintiffs’ argument on this
issue is overruled.
Conclusion
For the reasons stated above, we affirm the 5 October 2012 order of the trial
court granting Tyson’s motion to dismiss.
-7-
MALLOY V. PRESLAR
Opinion of the Court
AFFIRMED.
Judges BRYANT and INMAN concur.
Report per Rule 30(e).
-8-