Natalie Zitek v. D.R. Horton, Inc.

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Natalie Zitek, individually, and on behalf of all others
similarly situated, Plaintiff,

v.

D.R. Horton, Inc., Jane Doe #1-10; and, John Doe #1-50,
Defendants,

D.R. Horton, Inc., Appellant,

v.

AJ Landscaping & Grading LLC, A/K/A AJ Landscaping
& Grading, Inc; Allpro Textures, LCC; Alpha Omega
Construction Group, Inc.; American Concrete and
Precast, Inc., A/K/A ACP Concrete, Inc.; A&J Framing,
Inc; Alpha E.M.C.; A-Z, Inc.; Atlanta Floor Designs
Center; A Grade Above Others, LLC; Brand-Vaughan
Lumber Co., Inc.; BKF Builders, Inc; Builders
Designhouse, LLC; BMC East, LLC D/B/A Coleman
Floor, LLC; Builders Firstsource Southeast Group, LLC,
A/K/A Builders Firstsource, Inc; Bravo Carpenters, Inc.;
Caryl Mechanics II, Inc.; Caryl Mechanicals, Inc.;
Cannaday Siding and Gutter, Inc; Cortes Painting, LLC;
CBU Enterprises, Inc.; CPI Security Systems, Inc.; Dom
Group, LLC; Ferguson Enterprises, Inc.; Five Star
Construction Inc.; Five Star Foundations, LLC;
Galloway-Bell, Inc., A/K/A Galloway-Bell, Inc. II;
BGET Floored, LLC; GBS Building Supply-Us LBM,
LLC, A/K/A GBS Building Supply, Inc.; General Shale
Brick Inc.; Greener Pastures, Inc. A/K/A Greener
Pastures of Aiken, Inc; IBP Asset, LLC D/B/A Blue
Ridge Building Products; JLS Masonry, Inc.; Kings
Landscaping, LLC; Landshapers, LLC; Lade-Danler,
Inc.; Lansing Building Products, Inc.; Long Heating &
Air Conditioning, Inc.; L&M Electric, Inc.; Manale
Landscaping, LLC; MJ Cowboys, LLC; M&L General
Construction, LLC A/K/A M&L General Construction,
Inc.; M&L Reyna Construction, LLC; M&M
Foundations, LLC; Nazareth Builders, LLC; NB
Contractors, LLC; Poinsett Development, LLC; Poinsett
Homes, LLC; P&T Construction, LLC; P&L Enterprises,
LLC; Probuild Company A/K/A Probuild Holdings, Inc.;
Rite Rug Co.; Rodney Howard Grading Co.; Sandlapper
Concrete, LLC; Sodfather, Inc., Landscape Contractors;
Stock Building Supply, LLC; Topbuild Home Services,
Inc. A/K/A Gale Gale Contractors Service; Tucker
Materials, Inc. A/K/A Gypsum; UTM Enterprises, Inc.,
Dupree Plumbing Company, Inc.; Willow Tree
Landscaping, Inc., Third-Party Defendants,

Of which Builder Services Group F/K/A Masco
Contractor Services Central Inc. F/K/A Gale Industries,
Inc. D/B/A Gale Contractors Services and IBP Assets,
LLC D/B/A Blue Ridge Building Products, are the
Respondents.

Appellate Case No. 2023-001401

Appeal From Anderson County
R. Scott Sprouse, Circuit Court Judge

Unpublished Opinion No. 2026-UP-172
Heard February 3, 2026 – Filed April 8, 2026

AFFIRMED

Carl F. Muller, of Carl F. Muller, Attorney at Law, P.A.,
of Greenville; Jason Michael Imhoff, of Imhoff Law
Firm, of Greenville; and John T. Crawford, Jr., and
Kimila Lynn Wooten, both of Kenison, Dudley &
Crawford, LLC, of Greenville, all for Appellant.

Timothy J. Newton and Everett Augustus Kendall, II,
both of Murphy & Grantland, P.A., of Columbia, for
Respondent IBP Assets, LLC.

Alicia Noel Bolyard, of Charleston, for Respondent
Builder Services Group.

PER CURIAM: This case stems from D.R. Horton, Inc.'s role as the general
contractor for a residential development in Anderson County. Hundreds of
homeowners joined a class action against D.R. Horton alleging defective work on
their houses. D.R. Horton added dozens of subcontractors as third-party defendants
to the suit alleging any defective work was their responsibility. D.R. Horton sued
the subcontractors for breach of contract, breach of warranties, negligence, and
indemnification.

Respondents are two of those subcontractors/third-party defendants. They sought
summary judgment because they believed their work was not implicated in the suit.
They also argued that, even if D.R. Horton was entitled to contractual
indemnification, the contractual indemnity provisions were unenforceable. They
argued D.R. Horton's other claims failed because those claims were just disguised
claims for indemnity.

The homeowners eventually stipulated that Respondents' work was not implicated
in the suit. At that point, D.R. Horton conceded its claims for breach of warranties
and negligence should be dismissed. D.R. Horton contended, however, that its
contractual claims (primarily for indemnity but also for breach of contract) remained
viable. The circuit court granted summary judgment to Respondents on all claims.
Those orders are the subject of this appeal.

In summary judgment cases, we apply the same standard as the circuit court under
Rule 56(c), SCRCP. Lanham v. Blue Cross & Blue Shield of S.C., Inc., 349 S.C.
356, 361, 563 S.E.2d 331, 333 (2002). "Summary judgment is proper when there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law." Id.
D.R. Horton insists that it is not seeking indemnity. Instead, D.R. Horton asserts it
has a viable breach of contract claim based on Respondents' alleged failure to defend
D.R. Horton in the class action, which D.R. Horton believes entitles it to
reimbursement for its "defense costs and expenses." We affirm the grants of
summary judgment for three reasons.

First, this breach of contract claim was not in the complaint. The breach of contract
claim alleged that if the homeowners proved Respondents' work was defective,
Respondents would have breached their agreements with D.R. Horton. There is no
reference to a duty for Respondents to provide D.R. Horton with an absolute defense
to the homeowners' suit, and certainly no claim that Respondents were obligated to
defend D.R. Horton even if Respondents did not perform defective work and were
not liable to provide indemnity. The complaint's only mention of "defend" is in the
context of and together with the claim for indemnity. D.R. Horton cannot seek relief
that was not pled. See Gainey v. Gainey, 279 S.C. 68, 70, 301 S.E.2d 763, 764
(1983) ("Normally, a party may not receive relief which was not requested in the
pleadings.").

Second, even if this breach of contract claim had been pled, it would be redundant
to and merge with the claim for indemnity. D.R. Horton's third-party complaint
stated: "To the extent that Plaintiff proves that the work was not performed correctly,
Subcontractors materially breached the Agreements . . . ." See Stoneledge at Lake
Keowee Owners' Ass'n, Inc. v. Builders FirstSource-Se. Grp., 413 S.C. 630, 637, 776
S.E.2d 434, 438 (Ct. App. 2015) ("Under Marick's own allegations, its cross-claims
arose only when it faced potential liability for Stoneledge's damages and incurred
fees and costs defending against Stoneledge's lawsuit. Marick's breach of contract
and breach of warranty cross-claims are nothing more than claims for equitable
indemnity."); see also BEI-Beach, LLC v. Christman, 440 S.C. 98, 107, 889 S.E.2d
601, 605 (Ct. App. 2023) ("Like the general contractor in the Stoneledge cases, Lend
Lease has not shown it suffered independent damages as a result of Antunovich's
alleged negligence. Rather, Lend Lease[] . . . seek[s] damages arising exclusively
from Lend Lease's need to defend itself against a potential judgment in BEI's Market
Common litigation, for which Lend Lease also seeks indemnity. Thus, in granting
partial summary judgment, the circuit court properly held Lend Lease's negligence
claims are not independent of its indemnity claim."). D.R. Horton seeks to recover
the costs of defending the homeowners' suit, including attorney's fees. These are the
same damages available in an indemnity claim. McCoy v. Greenwave Enters., Inc.,
408 S.C. 355, 359–60, 759 S.E.2d 136, 138 (2014).
Third and finally, D.R. Horton presented no evidence of damages. D.R. Horton's
generic allegation that it defended Respondents' work and incurred defense costs and
expenses in doing so is not sufficient to withstand summary judgment. See John
Deere Constr. & Forestry Co. v. N. Edisto Logging, Inc., 443 S.C. 424, 435, 904
S.E.2d 889, 895 (Ct. App. 2024) (stating, to withstand summary judgment, a
nonmoving party cannot "rest upon the mere allegations or denials of his pleadings,
but . . . must set forth specific facts showing that there is a genuine issue for trial"
(quoting Thompkins v. Festival Ctr. Grp. I, 306 S.C. 193, 195–96, 410 S.E.2d 593,
594 (Ct. App. 1991))). Though it is obvious that D.R. Horton incurred costs and
expenses in defending the suit, the record does not show that there was any effort to
identify—and that it would even be possible to identify—what costs and expenses
could rationally be attributed to defending Respondents' work. To the extent D.R.
Horton argues it can seek indemnity even if it did not incur fees and costs related to
Respondents' work, we are not aware of any authority allowing that sort of claim.

Each of these reasons is dispositive; therefore, we need not address any remaining
issues. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518
S.E.2d 591, 598 (1999) (ruling it unnecessary for appellate courts to address
remaining issues when the resolution of a prior issue is dispositive). This reasoning
resolves the appeal without reference to Respondents' joint sur-reply brief. We
accordingly deny the motion to strike that brief as moot.

AFFIRMED.

GEATHERS, HEWITT, and CURTIS, JJ., concur.