IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA23-472

Filed 19 December 2023

Moore County, No. 21 CVS 982

CRANES CREEK, LLC, Plaintiff,

v.

NEAL SMITH ENGINEERING, INC., Defendant.

Appeal by Plaintiff from order entered 22 November 2022 by Judge James M. 

Webb in Moore County Superior Court. Heard in the Court of Appeals 18 October 

2023.

Van Camp, Meacham & Newman, PLLC, by Thomas M. Van Camp and 

Michael J. Newman, for Plaintiff-Appellant. 

Ragsdale Liggett PLLC, by Melissa Dewey Brumback, Amie C. Sivon, and 

Michael Hutcherson, for Defendant-Appellee.

GRIFFIN, Judge.

Plaintiff, Cranes Creek, LLC, appeals from the trial court’s order granting 

Defendant, Neal Smith Engineering, Inc.’s, motion for summary judgment. Plaintiff 

argues the trial court erred in granting Defendant’s motion for summary judgment 

asserting genuine issues of material fact exist concerning Plaintiff’s claims for 

negligence and negligent misrepresentation. We hold the trial court did not err in 

granting Defendant’s motion for summary judgment and affirm. 

I. Factual and Procedural Background
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In November 2015, Mid-State Development, LLC, purchased several acres 

located in Southern Pines. Mid-State intended to subdivide and develop the land into 

a residential subdivision (“Shaw Landing”). The Town of Aberdeen annexed the 

proposed subdivision from Southern Pines. On 12 November 2015, Mid-State entered 

into a contract with Defendant to provide civil engineering site services. 

On 8 June 2019, Plaintiff signed an offer to purchase Shaw Landing from MidState. During the due diligence period, Plaintiff reached out to C. Webster, 

Defendant’s member-manager, to ask if waterflow tests had been conducted. Plaintiff 

asked Webster to send the results and confirm whether flow was sufficient for fire 

suppression. B. Welborn, an employee of Defendant, responded to Plaintiff’s email 

on 2 July 2019 stating, in relevant part: “We will need to model the proposed water 

mains for the NCDEQ-DWR permit, but the fire flow at the dead-end hydrant meets 

the minimum fire flow requirements at 20 psi.” 

On 2 October 2019, Plaintiff completed the purchase of Shaw Landing. 

Sometime later, Plaintiff discovered additional water supply and pipes would have to 

be installed and run to the subdivision to meet the minimum flow requirements for 

fire suppression. 

On 20 July 2021, Plaintiff filed a complaint against Defendant asserting claims 

for negligent misrepresentation, negligence, breach of contract, and breach of implied 

warranties. On 29 September 2021, Defendant filed an answer and counterclaims. 

On 25 October 2021, Plaintiff filed an answer to Defendant’s counterclaims. On 11 
CRANES CREEK, LLC V. NEAL SMITH ENG’G, INC.

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October 2022, Defendant filed a motion for summary judgment. On 25 October 2022, 

Plaintiff filed a motion to amend their complaint and an amended complaint asserting 

claims for negligent misrepresentation and negligence. 

On 10 November 2022, Defendant’s motion for summary judgment came on for 

hearing in Moore County Superior Court. On 22 November 2022, the trial court 

entered an order granting Defendant’s motion for summary judgment and dismissing 

Plaintiff’s complaint and amended complaint. Plaintiff timely filed notice of appeal 

on 19 December 2022. 

II. Analysis

Plaintiff contends the trial court erred in granting Defendant’s motion for 

summary judgment as there were genuine issues of material fact concerning 

Plaintiff’s claims for negligence and negligent misrepresentation. We disagree. 

Summary judgment is appropriate where “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. R. Civ. P. 56(c) (2023). In a summary 

judgment proceeding, the movant “bears the burden of establishing the lack of any 

triable issue.” Schmidt v. Breeden, 134 N.C. App. 248, 251, 517 S.E.2d 171, 174 

(1999). We review the trial court’s allowance of a motion for summary judgment de 

novo, considering the evidence in the light most favorable to the non-moving party. 

Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007). 
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Plaintiff’s claims for negligence and negligent misrepresentation are both 

claims of professional negligence, as Plaintiff alleges Defendant was negligent in its 

professional capacity as an engineer. See Frankenmuth Ins. v. City of Hickory, 235 

N.C. App. 31, 34, 760 S.E.2d 98, 101 (2014) (citation omitted) (stating a claim for 

“negligence” is actually a claim for “professional negligence” where the plaintiff 

alleges negligent performance by the defendant in its professional capacity). “In a 

professional negligence action, the plaintiff bears the burden of showing: ‘(1) the 

nature of the defendant’s profession; (2) the defendant’s duty to conform to a certain 

standard of conduct; and (3) a breach of the duty proximately caused injury to the 

plaintiffs.’” Id. at 35, 760 S.E.2d at 101 (quoting Michael v. Huffman Oil Co., 190 

N.C. App. 256, 271, 661 S.E.2d 1, 11 (2008)). 

Further, the plaintiff must establish the standard of conduct or care through 

expert testimony. Id. Through this requirement, the expert is able to “assist the jury 

in discerning whether [the] defendant’s professional performance or conduct did not 

conform [with the standard of care], and thus was in breach of that duty and the 

proximate cause of [the] plaintiff’s injury.” Handex of the Carolinas, Inc. v. County of 

Haywood, 168 N.C. App. 1, 11, 607 S.E.2d 25, 31 (2005). 

Expert testimony is not required to establish the standard of care where “the 

common knowledge and experience of the jury is sufficient to evaluate [the 

defendant’s] compliance with [the] standard[.]” Id. (internal marks and citation 

omitted). This exception “is implicated where the conduct is gross, or of such a nature 
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that the common knowledge of lay persons is sufficient to find the standard of care 

required, a departure therefrom, or proximate causation.” Id. (internal marks and 

citations omitted). Where the common knowledge exception does not apply and the 

plaintiff fails to establish the professional standard of care through expert testimony, 

“summary judgement for the defendant is proper.” Frankenmuth, 235 N.C. App. at 

35, 760 S.E.2d at 101 (citation omitted); see also Huffman Oil Co., 190 N.C. App. at 

271, 661 S.E.2d at 11 (holding the plaintiffs failed to establish a prima facie showing 

of professional negligence where expert testimony regarding the standard of care was 

lacking). 

Thus, this Court will affirm the trial court’s grant of summary judgment where 

the plaintiff’s expert testimony “does not show, as is required to sustain the claim [for 

professional negligence], what an engineer practicing under the relevant standard of 

care actually does, nor any specific instances of breach of that relevant standard.” 

Handex, 168 N.C. App. at 12, 607 S.E.2d at 32 (emphasis omitted).

Here, Plaintiff made professional negligence claims against Defendant for 

negligent misrepresentation and negligence. Specifically, as to its negligent 

misrepresentation claim, Plaintiff asserted: 

Plaintiff justifiably relied, to his detriment, on information 

prepared and conveyed by Defendant without reasonable 

care, and Defendant owed to Plaintiff a duty of care to 

make a full and fair disclosure of all relevant facts 

concerning the sufficiency of waterflow for fire suppression 

for the project.
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Moreover, in its negligence claim, Plaintiff claimed:

[Defendant] owed a duty to Plaintiff to exercise the ability, 

skill and care ordinarily used by engineers on similar 

projects. 

[Defendant] did not perform its duties as owed to Plaintiff. 

[Defendant] failed to exercise the ability, skill and care 

customarily used by engineers on similar projects. 

[Defendant] thereby breached its duties to Plaintiff. In 

doing so, [Defendant] was negligent. 

Specifically, [Defendant’s] negligence includes but is not 

limited to, failing to know that the SW Broad Street 

Hydrant Flow at 20 psi did not meet the applicable Fire 

Code standards for the project, or negligently misreading 

the Hydrant Flow Test Report as somehow providing 

sufficient flow for fire suppression purposes for the project. 

Each of these claims required Plaintiff to establish, through expert witness

testimony, Defendant’s professional standard of care as an engineer. See 

Frankenmuth, 235 N.C. App. at 34, 760 S.E.2d at 101. Plaintiff offered deposition 

testimony from several experts, M. Zaccardo, T. Cross, and R. Briggs. None of these 

experts was able to testify as to whether Defendant had breached the standard of 

care as was required to support Plaintiff’s claims. In his deposition, Zaccardo’s stated:

Q: Did they ask you if you thought [Defendant] violated 

the standard of care for engineers?

A: In a sense, I think they asked me that question.

Q: And what was your answer?

A: My answer was I couldn’t really say, because the 

plans weren’t approved.

Q: And that’s true sitting here today, as well, right?
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A: Yes.

Q: So because the plans were not approved, you can’t 

say that [Defendant] violated the standard of care?

A: Because they weren’t complete. Yes. 

Cross testified similarly stating:

Q: Do you have an opinion that [Defendant] violated 

the standard of care in any capacity?

A: Based on information provided to me, I do not. 

Moreover, Briggs, when asked if Defendant violated the professional standard of care 

for engineers noted: 

A: [ ] [Defendant] conducted the fire flow test totally 

correctly. Some of the wording with respect to the 

dead-end hydrant you could take issue with, but that 

is really minor in this case. [Defendant] also 

correctly identified the fire flow at the dead-end 

hydrant of five hundred gallons per minute does 

meet the minimum fire flow requirement at twenty 

psi. The issue with this is does the five hundred 

gallons per minute satisfy the proposed development 

requirement with the municipality of Aberdeen. 

Everything that I have reviewed indicates that it did 

not.

Further, Briggs stated, in his opinion, Defendant should have communicated more 

clearly “some of the quirks” on the project. Nonetheless, Briggs was never able to 

definitively testify to the standard or whether Defendant breached the standard, only 

that he would have included more information in the email. 

Because none of Plaintiff’s experts were able to testify to the professional 

standard of care for engineers, Plaintiff failed to present a genuine issue of material 
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fact in support of its professional negligence claims against Defendant. Thus, the 

trial court did not err in granting Defendant’s motion for summary judgment.

III. Conclusion

For the aforementioned reasons, we hold the trial court did not err in granting 

Defendant’s motion for summary judgment.

AFFIRMED.

Judge DILLON and TYSON concur.