Charles Blanchard v. 480 King Street, LLC

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Charles Blanchard Construction Corp., Inc., Respondent,

v.

480 King Street, LLC, Defendant,

And

480 King Street, LLC, Plaintiff,

v.

Glick/Boehm & Associates, Inc., Defendant,

Of Whom 480 King Street, LLC is the Appellant,

And

Glick/Boehm & Associates, Inc. is the Respondent.

Appellate Case No. 2021-001510

Appeal From Charleston County
Jennifer B. McCoy, Circuit Court Judge

Opinion No. 6060
Heard December 5, 2023 – Filed May 22, 2024

AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED

Jesse Sanchez, of The Law Office of Jesse Sanchez, of
Mount Pleasant, and Brent Souther Halversen, of
Halversen & Halversen, LLC, of Mount Pleasant, both
for Appellant.

Kent Taylor Stair, Paul Eliot Sperry, and Jordan N.
Teich, all of Copeland, Stair, Valz & Lovell, LLP, of
Charleston, for Respondent.

LOCKEMY, A.J.: 480 King Street, LLC (480 King), appeals a circuit court order
dismissing its action against Glick/Boehm & Associates, Inc. (GBA) with
prejudice on the ground that 480 King failed to provide an affidavit in support of
its claims as required by section 15-36-100 of the South Carolina Code (Supp.
2023). We affirm in part, reverse in part, and remand.

On June 26, 2017, 480 King filed an action against GBA, the architect of record
for a construction project on property owned by 480 King. In its complaint, 480
King alleged claims for breach of contract, breach of warranty, and negligence
arising from GBA's performance. Pursuant to section 15-36-100(B), 480 King was
required to file with its complaint "an affidavit of an expert witness . . .
specify[ing] at least one negligent act or omission claimed to exist and the factual
basis for each claim based on the available evidence at the time of the filing of the
affidavit." 480 King did not submit such an affidavit either with its complaint or
within the forty-five-day grace period provided in section 15-36-100(C)(1).
Nevertheless, on November 17, 2017, Circuit Court Judge J. C. Nicholson signed
an order extending the deadline for 480 King to file the required affidavit to
November 27, 2017, and further stated that "[u]pon filing of the affidavit by this
date, [480 King] will have been deemed to be in compliance with the requirements
of [section 15-36-100(B)]." Judge Nicholson also gave GBA thirty days from the
date of the filing of the affidavit to file a motion contesting its sufficiency.

480 King filed an affidavit from its retained expert on November 20, 2017, and
GBA did not move to challenge its sufficiency within thirty days of its filing. In
his affidavit, 480 King's expert stated he was a professional engineer; he held
registrations in South Carolina, North Carolina, Florida, Louisiana, Ohio, and
Mississippi; and he was actively investigating the project giving rise to 480 King's
action against GBA.

As discovery in the case progressed, the expert gave multiple depositions. In these
depositions, he indicated he did not intend to offer a professional opinion about the
standard of care applicable to architects and did not feel "comfortable" talking
"specifically about the architect's standard of care." He testified he felt
"comfortable talking about the standard of care that a professional would provide
in either giving or completing construction administration services, whether that be
an architect or an engineer" and explained "[t]hose services are similar across the
board of professionals."

On June 28, 2021, GBA moved to dismiss 480 King's lawsuit pursuant to Rule
12(b)(6), SCRCP, on the ground that 480 King's retained expert was not qualified
to give an opinion about the standard of care applicable to an architect. In its
written opposition and at the hearing before Circuit Court Judge Jennifer B.
McCoy, 480 King argued GBA's motion was untimely pursuant to the terms of
Judge Nicholson's order. 480 King clarified that the expert stated that he could
discuss the standard of care applicable to construction administration services
provided by either a professional engineer or architect because of similarities
between the two professions. Judge McCoy stated that, although she understood
480 King's "logic," she had "to go back to [the] legislative intent" behind section
15-36-100. Judge McCoy stated she believed allowing the expert to testify "as to
whether or not an architect [breaches a] standard of care" would "fl[y] in the face
of the statute." She explained she understood "sometimes duties overlap between
professions" but that allowing this expert to testify would not comport with South
Carolina law.

On December 16, 2021, the circuit court dismissed 480 King's action against GBA,
finding 480 King failed to present an affidavit in support of its claims as required
by section 15-36-100. The circuit court ruled the expert's "failure to express any
opinion against [GBA] in terms of the standard of care of an [a]rchitect" and his
acknowledgment that he did not intend to offer an opinion, professional or
otherwise, about the standard of care of an architect, warranted a finding that 480
King "failed to present an affidavit in support of the claims against [GBA] as
required by [section 15-36-100]"; therefore, GBA's motion to dismiss "must be
granted."

480 King argues Judge McCoy's order ignores that 480 King's complaint asserts
causes of action against GBA in both tort and in contract, and thus some of its
claims were exempt from the affidavit requirement of 15-36-100. 480 King asserts
the circuit court erred in holding all of its causes of action were based on GBA's
allegedly negligent performance of professional services as an architect. We find
that if all of the claims included in the complaint were grounded in professional
negligence and the affidavit failed to meet the requirements of section 15-36-100,
the circuit court would not have erred in dismissing the entire complaint. See e.g.,
H & H of Johnston, LLC v. Old Republic Nat. Title Ins. Co., 405 S.C. 469, 748
S.E.2d 72 (Ct. App. 2013) (holding circuit court properly granted summary
judgment on behalf of a closing attorney being sued by a plaintiff claiming breach
of contract because professional negligence claims were subject to section
15-36-100's affidavit requirement; however, triable issues of fact remained as to
existence of oral contract related to title insurance). But 480 King raised breach of
contract and warranty claims arguably not subject to the contemporaneous affidavit
filing requirement of section 15-36-100. Based on the language of 480 King's
complaint and the record before us, we are unable to agree that the breach of
contract and breach of warranty claims were properly dismissed at this stage of the
litigation.

480 King also argues that the thirty-day period Judge Nicholson's order provided
for GBA to contest the sufficiency of the expert's affidavit operated as a bar against
GBA's belated motion to dismiss. We disagree with 480 King's contention that
Judge McCoy overruled Judge Nicholson's order. There was good cause for GBA
to contest the sufficiency of the expert's affidavit after further information was
uncovered in his three depositions; therefore, Judge McCoy did not err in allowing
GBA to make the motion. 1 See S.C. Code Ann. § 15-36-100(E). ("The trial court
may, in the exercise of its discretion, extend the time for filing an amendment or
response to the motion, or both, as the trial court determines justice requires.").

Nevertheless, based on our view of the record, we hold the circuit court erred in
dismissing the entirety of 480 King's action. See Doe v. Bishop of Charleston, 407
S.C. 128, 134, 754 S.E.2d 494, 497 (2014) ("When reviewing the dismissal of an
action pursuant to Rule 12(b)(6), SCRCP, the appellate court applies the same
standard of review as the trial court."). Under subsection (E) of section 15-36-100,
an allegedly defective affidavit can be grounds to dismiss the corresponding
complaint "for failure to state a claim." Dismissal is improper "[i]f the facts
alleged and inferences reasonably deducible therefrom, viewed in the light most
favorable to the plaintiff, would entitle the plaintiff to relief on any theory." Doe v.
Marion, 373 S.C. 390, 395, 645 S.E.2d 245, 247 (2007) (emphasis added).
"Questions of law may be decided with no particular deference to the trial court."
Wiegand v. U.S. Auto. Ass'n, 391 S.C. 159, 163, 705 S.E.2d 432, 434 (2011).

1
Discovery had proceeded for years with much information disclosed by both
sides. Therefore, GBA could have raised its objection to the sufficiency of the
affidavit through a motion to exclude and for summary judgment. In any event,
GBA's filing here is not controlled by Judge Nicholson's November 2017 order.
Under section 15-36-100(A), an "expert witness" means "an expert who is
qualified as to the acceptable conduct of the professional whose conduct is at issue
. . . ." Although this subsection includes numerous additional requirements, none
specify that the expert witness must be a professional in the same field as the
defendant. Section 15-36-100(A)(3) allows the submission of an affidavit from an
individual who "has scientific, technical, or other specialized knowledge which
may assist the trier of fact in understanding the evidence and determining a fact or
issue in the case, by reason of the individual's study, experience, or both."
Additionally, the statutory definitions of the "Practice of engineering" and "Design
coordination" further clarify the expert's ability to satisfy the affidavit requirement
for an expert witness pursuant to section 15-36-100. See S.C. Code § 40-22-20
(Supp. 2023) (defining the "Practice of engineering" as requiring education,
training, and experience in "design and design coordination" and "the review of
construction for the purpose of monitoring compliance with drawings and
specifications" and "Design coordination" as including "the review and
coordination of those technical submissions prepared by others, including . . .
architects").

At oral argument, 480 King's appellate counsel noted architectural and engineering
services at times overlap, particularly in the area of contract administration. In his
depositions, 480 King's expert testified as to his experience as an engineer
providing construction contract administration services. Thus, to the extent the
circuit court dismissed 480 King's claims relating to contract administration
services for which an engineer may be properly qualified, we reverse. However,
we affirm the dismissal of 480 King's negligent design and supervision claims to
the extent they require testimony by an expert qualified to address an architect's
standard of care. 2

Therefore, we affirm in part, reverse in part, and remand this matter to the circuit
court for further proceedings.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

2
We recognize it may be difficult to delineate the engineering and architectural
categories. A properly supported motion for summary judgment may be required
to aid this sorting process; the parties will also likely need to address whether 480
King's breach of contract and warranty claims are truly disguised claims for
architectural negligence or claims about which a non-architect engineer may
properly testify.
MCDONALD and VINSON, JJ. concur.