Wedgewood Condominium Association v. Centex Homes (2)

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Wedgewood Condominium Association, Respondent,

v.

Centex Homes, a Nevada General Partnership; Balfour
Beatty Construction, LLC as Successor by Merger to
Centex Construction Company, Inc.; and Centex
Construction, LLC; Crescent Engineering, Inc.,
Defendants,

Of which Centex Homes, a Nevada General Partnership;
Balfour Beatty Construction, LLC as Successor by
Merger to Centex Construction Company, Inc., and
Centex Construction, LLC, are the Appellants.

and

Centex Homes, a Nevada General Partnership, Third-
Party Plaintiff,

v.

Right Way Construction, Inc. a/k/a RWG, Inc. a/k/a
Right Way Group, Inc. a/k/a RWGR, Inc.; Frank Harris
d/b/a Frank Harris Construction a/k/a/ F. Harris
Construction a/k/a Harris Drywall; Builders First Source-
South East Group, LLC; Stock Building Supply, LLC
f/k/a Stock Building Supply, Inc. f/k/a Carolina Builders
Corporation; Michael D. Brownlee d/b/a Carolina
Drywall & Interiors; Carolina Drywall & Interior, Inc.,
a/k/a Carolina Drywall & Interiors, Inc. a/k/a Carolina
Drywall Contractors, Inc.; Roof Doctor of the Carolinas,
Inc.; John D. Frazier d/b/a and/or a/k/a Roof Doctor
and/or Roof Doctor of the Carolinas and/or Roof Doctor
of the Carolinas, Inc.; Steven Bosch d/b/a The Roofer
Man; Tri-City Insulation and Building Products of Myrtle
Beach, Inc.; Martin Mata d/b/a Martin Masonry, Inc.;
Martin Masonry, Inc.; BR Brick & Masonry, Inc.; BR
Brick & Masonry, LP f/k/a BR Brick & Masonry, Inc.;
Unicon Concrete, LLC; Seno's Cleaning Services; Rice
Planter Carpets, Inc. n/k/a Creative Touch Interiors, Inc.,
Floors, Inc. Successor By Merger to Rice Planter
Carpets, Inc.; Carpets by Kendall, Inc.; Reliable Floor
Systems, Inc.; TNT Painting; Paint with Pride a/k/a
Painting with Pride; William Evans d/b/a Top Notch
Painters; Morningstar Consultants, Inc.; MI Windows
and Doors, LLC; Michael Dawson d/b/a Michael
Dawson Construction, Inc.; Vereen Concrete Co. Inc.;
AK Construction Inc. a/k/a AK Framing and Siding Co.;
and AK United, Inc. f/k/a AK Construction Inc., Third-
Party Defendants.

Appellate Case No. 2023-001132

Appeal From Horry County
Carmen T. Mullen, Circuit Court Judge

Opinion No. 6124
Heard June 10, 2025 – Filed September 24, 2025

AFFIRMED

Thomas C. Hildebrand, Jr. and William Green
DesChamps, IV, both of Parker Poe Adams & Bernstein,
LLP, of Charleston; Katon Edwards Dawson, Jr., of
Parker Poe Adams & Bernstein, LLP, of Columbia; and
Jeffrey A. Turner and Stephanie A. Douglas, both of
Bush Seyferth, PLLC, of Troy, Michigan, all for
Appellants.
Gene McCain Connell, Jr. and Lawrence Sidney Connor,
IV, both of Kelaher Connell & Connor, PC, of Surfside
Beach, and Stacy L. Stanley, of Stanley Law Firm, LLC,
of Little River, all for Respondent.

KONDUROS, J.: This condominium construction defect case centers primarily
on whether the case was brought in a timely fashion under the statute of limitations
and statute of repose. The use of unlicensed subcontractors is also an issue. After
a five-day jury trial, Wedgewood Condominium Association (Wedgewood)
received a $6.75 million jury verdict in its favor. Centex Homes; Balfour Beatty
Construction, LLC; and Centex Construction, LLC (collectively, Centex) appeal.
We affirm.

FACTS/PROCEDURAL HISTORY

Centex constructed the nine-building, eleven-unit condominium complex in from
2000 to 2001. Wedgewood filed a construction defect lawsuit against Centex in
2018. In its complaint, Wedgewood alleged multiple claims for damages including
those stemming from (1) improper installation of rough opening flashing and
window sills, flashing at window heads, vertical fiber-cement siding panels, brick
veneer ties, roof underlayment, metal drip edge, and accessible ramps within
vehicle access aisles; (2) premature deterioration of self-adhered flashing
membrane, vinyl windows, and insulated glass units; (3) improper attachment of
horizontal lap fiber-cement siding, roof shingles, roof shingle starter strip, and
metal fascia; (4) inadequate support of steel lintels above windows; (5) inadequate
and missing through-wall flashing at the brick veneer; (6) inadequate protection of
untreated wood furring members; (7) improper and incomplete installation of
flashing and weather-resistive barrier; (8) incomplete installation and damaged
waterproofing on front walkways and stair towers; (9) inadequate fireproofing of
structural members along front walkways and rear balconies; and (10) improper
stair riser dimensions.

Centex filed a motion for summary judgment based on the statute of limitations.
In its supporting memoranda, Centex included what it termed "undisputed facts"
with excerpts of minutes from Wedgewood Board of Directors' (the Board)
meetings discussing various issues with wood rot, mold, and water intrusion
beginning in 2003. Among these was an entry from an October 28, 2006 meeting
discussing leaking windows in the complex.
B. Update to Repairs on Buildings 1, 9 and 8

Chuck Gornick [the property manager] stated that the
repairs to Building 1 have been completed, Building 9 is
finishing up and Building 8 will be next. Mr. Gornick
stated that it appears that in windows that are double and
triple hung, there is a gap at the top of the strip between
the windows. It is believed that this is where the leaking
is occurring. Mr. Gornick recommended having an
engineering expert look at these windows to try and
determine if this is a Centex problem. The Board
recommended notifying Centex that an expert would be
looking at the windows. Chuck Gornick stated that he
would keep the Board posted on all developments.

The circuit court granted Centex's summary judgment motion based on the statute
of limitations regarding plumbing/sewer installation defects and defects in
accessibility ramps in the parking areas. Its order found that after one of the units
experienced a sewer backup on multiple occasions, the sewer lines under the units
were inspected causing "the plumbing repair company to recommend
[Wedgewood] change the height of the pipe in order to improve drainage and
prevent further backups." The order further noted the board of directors included
in its November 2, 2012 meeting minutes that the cause of the sewer issues may be
"due to poor installation on the builder's part." The circuit court also found issues
with the ramps and parking lots were open and obvious. However, it denied
Centex's summary judgment motion as to any other claims.

At trial, Wedgewood introduced some of the exhibits it had presented at summary
judgment, including the minutes of the October 28, 2006 Board meeting, and
called three witnesses. Randall Spencer was a resident and owner in the
community and was a member of the Board for 21 years. He testified the Board's
function was to make sure maintenance was performed on the complex and that its
bills were paid. He indicated the Board relied on property management companies
and their employees to inform them of any issues regarding maintenance and to
make recommendations as to how those could or should be handled. With regard
to specific issues, Spencer indicated the Board meeting minutes would be the most
accurate reflection of what the Board knew and when and what actions it took. He
stated he did not believe the information in the October 2006 Board meeting
minutes about the gap in the double- and triple-hung windows put the Board on
notice of all the defects in the construction because that was limited to water leaks
around windows and it was simply the project manager's opinion. Spencer was
shown multiple bills illustrating that the Board had spent approximately $83,000 in
the year 2010 replacing the exterior trim, posts, and drywall around the buildings,
apparently due to rot. Centex pointed out that some of these repairs were made
after the Board had the exterior carpets removed from walkways but chose not to
replace the associated membrane as recommended by the manufacturer. Spencer
also acknowledged that a complex-wide recaulking or trim repainting was never
undertaken; instead, repairs were done as necessary.

Ross Clements, a forensic engineer, testified as Wedgewood's expert regarding the
construction defects at the complex. Clements stated he did destructive testing, as
is common in these types of cases. He testified he found numerous defects and
code violations that, in his opinion, had led to water intrusion and resulting rot in
the units, common areas, and behind the sheathing of the buildings. Clements also
testified that during discovery, documents of Morningstar Consultants, a
construction consultant used by Centex during the building of the complex,
reported some of the issues Clements found in his investigation. To conclude his
direct testimony, Clements stated:

Just to summarize what we've gone over the last several
hours, the construction defects have left the buildings in a
substandard condition allowing water intrusion and
reducing building safety and performance. The
construction defects represent violations of the applicable
building codes, industry standards, and manufacturers'
instructions that were applicable at the time of the
construction for the contractor to follow. The
construction defects have caused hidden damages that
were revealed through my destructive testing.

On cross-examination, Clements was asked about the Board's replacing of $83,000
in window trim in 2010 and its decision not to replace the carpet membrane. When
asked about comments noted in the October 2006 Board meeting minutes
regarding the window gap, Clements replied that Gornick's statement was "not
representative of all of the issues we['ve] talked about here today."

Bob Gallagher testified on Wedgewood's behalf regarding the cost to make the
repairs to the complex based on Clements's recommendations. This total was
$9,376,719.85 and included the costs for labor, materials, and mobilization,
meaning trucks, scaffolding, and other support items. On cross-examination,
Centex elicited multiple ways Gallagher's total repair cost estimate might be
reduced if alternative repair methods, as opposed to Clements's total replacement
approach, were used. Gallagher testified he based his estimate on Clements's
recommendations, not on his own opinion as to what repairs were needed.

At the close of Wedgewood's case, Centex made a motion for directed verdict
based on the statute of limitations and the statute of repose. The circuit court
denied this motion without a providing a specific basis for doing so.

Centex offered four witnesses, including Jeremy Martin, an area construction
manager with Centex who had worked for the company for almost twenty-five
years. He testified regarding monthly technical training Centex provides for field
managers. He also indicated the company has "toolbox talks" and "tailgate talks"
on a regular basis to discuss issues in the industry and things it is observing in the
field. Martin did not testify he was involved with the actual construction at the
complex, but generally testified to the inspections process prior to closing on
homes with buyers. He indicated Centex had used Morningstar Consultants for an
extra layer of inspection at the complex.

Bob Carter testified as Centex's forensic engineer. Carter acknowledged certain
deviations from manufacturers' instructions and code violations at the complex.
However, the overall message of his testimony was that these defects were
generally minor, did not affect the integrity of the complex to the degree Clements
suggested, and are simply a part of doing construction in the real world. He further
stated the repairs suggested by Clements far exceeded what was required.

Skip Lewis testified for Centex as an expert in structural engineering with a focus
on the shear walls in the complex. He testified he agreed with Clements in that the
walls were not constructed with strict compliance to the 1999 plans, but that they
were sound and code compliant as they would withstand very high wind speeds.
He also disagreed that the attic trusses were structurally unsatisfactory as Clements
had suggested.

Steve Watkins testified as Centex's expert general contractor. Based on the scope
of work proposed by Carter, Watkins estimated repair costs would total
$384,963.84.

At the conclusion of Centex's case, it again moved for directed verdict, primarily
focusing on the statute of repose and a lack of evidence to establish gross
negligence. The circuit court and counsel veered into discussions regarding jury
charges without specifically addressing the directed verdict motion.

In closing arguments, Wedgewood highlighted the admitted evidence of building
code violations to support its claim for gross negligence. Centex argued to the jury
the statute of limitations as well as a lack of evidence proving gross negligence. It
also argued that Clements's recommended repairs were actually complete tear-outs
and replacements that simply were unnecessary to remedy the issues in the
complex. Centex pointed out that building inspectors were satisfied with code
compliance to the point of giving it a certificate of occupancy at the completion of
the build. On reply, Wedgewood continued to pursue its code violation and gross
negligence argument, stating:

The Statute of Repose. He almost got it right, but he
didn't tell you the whole thing. Fancy word: Repose. It
means that you can bring a lawsuit after a certain period
of time, and you can bring a lawsuit after a certain period
of time after 13 years if -- if you can prove violations of
building codes, and that is what we've done here.

[CENTEX]: Your Honor –

THE COURT: Objection?

[CENTEX]: Yes, ma'am.

THE COURT: What?

[CENTEX]: The code section said
they –

THE COURT: You can't testify. You can only
do one[-]word objections. Overruled. You can continue.

When the circuit court charged the jury, it stated regarding the statute of
limitations:

Now, the Centex entities also raised the
Statute of Limitations as a defense, which is a
part of the law of our state. As adopted by South
Carolina, the discovery rule states that a Statute
of Limitations begins to run when a claim
reasonably ought to have been discovered. The
Statute of Limitations at the Wedgewood Condominium
Association's claim is three years.

A claim ought to have been discovered if an
injured party, the homeowners['] association, either
knows or should have known an action arises from
wrongful conduct through the exercise of reasonable
due diligence that some claim against another party
might exist.

The law requires to exercise reasonable due diligence
that an injured party act with some promptness, where
the facts or circumstances would put a person of common
knowledge on notice that some right of his has been
violated, or that a claim against another party may exist.
At that point, the clock starts. The clock is not delayed
until advice of counsel is sought or a full-blown theory of
recovery is developed. The jury must apply the discovery
rule to determine whether Wedgewood Condominium
Association filed this lawsuit on time.

The circuit court also charged the statute of repose, gross negligence, and code
violations in relation to gross negligence. The parties agreed to a verdict form that
posed only two questions. First, did the jury find in favor of Wedgewood or
Centex as to the claim of gross negligence? Second, and only if the jury found in
favor of Wedgewood, the verdict form provided a blank space for any actual
damages.

The jury found in favor of Wedgewood in the amount of $6.75 million. Centex
filed a motion for judgment notwithstanding the verdict (JNOV) based on both the
statute of limitations and the statute of repose. A hearing was held on the motion.
In its ruling, the circuit court essentially deferred to the jury's verdict.

The statute of limitations, like I said, I -- I just think it's a
question of facts as to all the issues. I just didn't direct a
verdict -- I'm sorry, that I didn't grant summary judgment
on. I think in construction cases, you know, obviously,
you almost always look to the homeowner's association
meeting minutes to see what they discussed. And you
know, then you look and see what was discussed. And
along with that, you also look to see what the cost of
repairs were and what kind of repairs they did. And you
know, I don't find that in this case, based on the extent
[of] damage, that those were anything more than just
maintenance and just trying to, you know, do what they
needed to do. And I don't think it put them on notice
necessarily. Or if it did, it was a question of the fact for
the jury to determine that and not me. I just think that
that was within the -- I think it's the jury's purview.
Again, I grant summary judgment on the ones that I said
absolutely not, that there's no way they didn't know. And
for the rest of it, I think it was a jury issue.

This appeal followed.

LAW/ANALYSIS

I. Preservation

As an initial matter, Wedgewood asserts Centex did not preserve its argument
regarding the statute of limitations. 1 We disagree.

1
Conversely, Centex argues in its reply brief that Wedgewood waived its
preservation argument because it did not raise this point to the circuit court at the
JNOV hearing. Wedgewood acknowledged the statute of limitations issues had
been discussed throughout the case. However, the crux of Wedgewood's argument
is that Centex failed to obtain a ruling. Although Centex's argument does not
entirely miss the mark, it is too weak to warrant deciding the statute of limitations
issue on the ground of preservation when this was not a paramount issue
throughout the litigation. See Herron v. Century BMW, 395 S.C. 461, 465, 719
S.E.2d 640, 642 (2011) ("Issue preservation rules are designed to give the trial
court a fair opportunity to rule on the issues, and thus provide us with a platform
for meaningful appellate review." (quoting Queen's Grant II Horizontal Prop.
Regime v. Greenwood Dev. Corp., 368 S.C. 342, 373, 628 S.E.2d 902, 919 (Ct.
App. 2006)); id. ("Imposing such a requirement on the appellant 'is meant to enable
the lower court to rule properly after it has considered all relevant facts, law, and
arguments.'" (quoting I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526
Centex moved for summary judgment based on the statute of limitations as to all
the claims against it. The circuit court granted the motion as to any sewer issues
and any issues regarding access ramps in the parking areas. The circuit court
denied summary judgment as to the other alleged damages without explanation. At
trial, Centex raised the statute of limitations in its motion for directed verdict at the
conclusion of Wedgewood's case. Centex argued, "What we have here and what
you heard were some homeowners in 2006 found out about some problems. If they
made an investigation then, those problems would have been discovered and
corrected very easily. So[,] I think it is barred by the Statute of Limitations."

Much of the discussion then centered on Centex's position that the statute of repose
barred recovery because Wedgewood had shown no evidence of gross negligence,
or more specifically some sort of intentional bad conduct beyond the code
violations testified to by the experts. Much discussion also concerned the Unfair
Trade Practices Act claim and whether it fell within the statute of repose. Still,
Centex raised the statute of limitations again prior to concluding its argument,
stating:

So all of these, again, are trumped by the Statute of
Repose, but even individually, I don't think there has
been evidence to support them. The Statute of
Limitations, I would also move on that. The
homeowners noticed these deficiencies back in 2006. If
they investigated those and hired the engineer who was
recommended, I think that they would have found these.

At the conclusion of all evidence, Centex again moved for directed verdict on the
statute of repose. However, the discussion between Centex, Wedgewood, and the
circuit court quickly morphed into a discussion regarding jury charges and the
verdict form as opposed to the motion for directed verdict. Within that discussion
the circuit court stated: "As of now, I have the Statute of Limitations in our charge

S.E.2d 716, 724 (2000)); see also Johnson v. Roberts, 422 S.C. 406, 411, 812
S.E.2d 207, 210 (Ct. App. 2018), aff'd, 427 S.C. 258, 830 S.E.2d 910 (2019)
("Our supreme court has cautioned that issue preservation 'is not a "gotcha" game
aimed at embarrassing attorneys or harming litigants.'" (quoting Atl. Coast Builders
& Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730 S.E.2d 282, 285 (2012)).
because I still think it's applicable. You moved for summary judgment on it."
Centex replied, "He should get that I think."

Further discussion ensued about jury charges and the verdict form, and
Wedgewood and the circuit court appeared to understand that Centex had admitted
liability, as to at least simple negligence. Centex argued against that conclusion
and again raised the statute of limitations argument:

THE COURT: I need to know this: Do you admit that
Centex proximately caused any damages from [its]
negligence?

CENTEX: No. And I'll tell you why. One, the Statute of
Limitations. The plaintiffs knew back in 2000 -- and this
is the one we struggled with so much -- they were told in
2006 by the homeowners' association, look, there are
issues with this building, and you need to hire an
engineer to inspect them and determine if these are
Centex's problems.

THE COURT: So you are saying Statute of Limitations is
a pure affirmative defense to negligence?

CENTEX: Yes, ma'am. Absolutely. And then by
[Wedgewood's] own property manager's admission, in
2016 they said, We told you back in 2006, and now
we've got a bigger problem. You all need to come out
and do exactly what we told you to do back in 2006. So,
basically, if they would have done it in 2006, what they
finally decided to do in 2016, all of these problems would
have been discovered. I think that that is -- if we're going
to get there, that is something for the jury to consider.

(emphasis added).

This discussion continued regarding whether the circuit court would charge the
statute of repose and the court stated: "My concern is I haven't seen where the
Statute of Repose ever gets charged. I mean, obviously, the Statute of Limitation
does, and you moved on it, but . . . ."
After the jury returned its verdict, Centex made a motion for JNOV and presented
a clear and cogent argument regarding the statute of limitations. Following a
hearing, the circuit court orally denied the motion and later memorialized this
denial in a Form 4 order.

Wedgewood contends Centex's statute of limitations argument is not preserved for
appellate review because it failed to renew its directed verdict motion on that basis
after the close of all evidence and never obtained a ruling from the circuit court on
that issue. However, Centex brought the issue to the circuit court's attention more
than once during these discussions. Wedgewood is correct that Centex did not
explicitly state: "We move for directed verdict based on the statute of limitations."
However, the record shows the circuit court was well aware of Centex's argument
regarding the statute of limitations and was sending the matter to the jury. In doing
so, it effectively ruled it was denying relief on the basis of the statute of
limitations. Furthermore, Rule 50(b), SCRCP, provides: "Whenever a motion for a
directed verdict made at the close of all the evidence is denied or for any reason is
not granted, the court is deemed to have submitted the action to the jury subject to
a later determination of the legal questions raised by the motion." Again, "issue
preservation 'is not a "gotcha" game aimed at embarrassing attorneys or harming
litigants.'" Johnson, 422 S.C. at 411, 812 S.E.2d at 210 (quoting Atl. Coast
Builders, 398 S.C. at 329, 730 S.E.2d at 285). The matter was thoroughly
discussed throughout the trial and later at the JNOV stage with a clear ruling.
Consequently, Centex's statute of limitations argument is preserved.

II. Statute of Limitations

On the merits, Centex argues the circuit court erred in denying its directed verdict
and JNOV motions because Wedgewood's lawsuit was commenced after the
statute of limitations on its claims had run. We disagree.

"Statutes of limitations embody important public policy considerations in that they
stimulate activity, punish negligence, and promote repose by giving security and
stability to human affairs." Allwin v. Russ Cooper Assocs., Inc., 426 S.C. 1, 12,
825 S.E.2d 707, 712 (Ct. App. 2019) (quoting Moates v. Bobb, 322 S.C. 172, 176,
470 S.E.2d 402, 404 (Ct. App. 1996)). "One purpose of a statute of limitations is
'to relieve the courts of the burden of trying stale claims when a plaintiff has slept
on his rights.'" Moates, 322 S.C. at 176, 470 S.E.2d at 404 (quoting McKinney v.
CSX Transp., Inc., 298 S.C. 47, 49-50, 378 S.E.2d 69, 70 (Ct. App. 1989)).
"Another purpose of the statute of limitations is to protect potential defendants
from protracted fear of litigation." Id. "The cornerstone policy consideration
underlying statutes of limitations is the laudable goal of law to promote and
achieve finality in litigation." Allwin, 426 S.C. at 12, 825 S.E.2d at 713 (quoting
Carolina Marine Handling, Inc. v. Lasch, 363 S.C. 169, 175, 609 S.E.2d 548, 552
(Ct. App. 2005)).

Section 15-3-530 of the South Carolina Code (2005) governs the claims in this
case. See S.C. Code Ann. § 15-3-530 (1), (5) (prescribing a three-year statute of
limitations for "action[s] upon a contract" and injury to the rights of another, "not
arising on contract" respectively). For construction defect claims, the statute of
limitations begins to run from the date of discovery. McAlhany v. Carter, 415 S.C.
54, 63, 781 S.E.2d 105, 110 (Ct. App. 2015). "The statute runs from the date the
injured party either knows or should have known by the exercise of reasonable
diligence that a cause of action arises from the wrongful conduct." Id. (quoting
Dean v. Ruscon Corp., 321 S.C. 360, 363, 468 S.E.2d 645, 647 (1996). "The
exercise of reasonable diligence means simply that an injured party must act with
some promptness where the facts and circumstances of an injury would put a
person of common knowledge and experience on notice that some right of his has
been invaded or that some claim against another party might exist." Id. (quoting
Epstein v. Brown, 363 S.C. 372, 376, 610 S.E.2d 816, 818 (2005). "[T]he fact that
the injured party may not comprehend the full extent of the damage is immaterial."
Id. (quoting Dean, 321 S.C. at 364, 468 S.E.2d at 647). "The date on which
discovery should have been made is an objective, not subjective, question." Id.
(quoting Kreutner v. David, 320 S.C. 283, 285, 465 S.E.2d 88, 90 (1995)).

The circuit court granted summary judgment for Centex as to Wedgewood's
plumbing claims and claims regarding the ramps in the complex based on the
Board minutes stating the issue may be "due to poor installation on the builder's
part" and the court's finding that the ramp issues were open and obvious. The court
found those issues were sufficiently known such that Wedgewood was on notice of
a potential claim. In addition to the evidence supporting that determination,
Centex provided numerous citations to the minutes of the Board discussing water
damage, rot, failing ceilings and flooring, window leaks, and even references to
other Centex-built complexes experiencing similar issues. Included therein were
the 2006 Board meeting minutes in which the property manager discussed leaking
windows and suggested contacting an engineer to evaluate the issue as it may be a
"Centex problem." Nevertheless, the circuit court denied summary judgment as to
claims related to windows or other water damage without explanation.

The case law on this issue is mixed, with determinations regarding notice being
extremely fact specific. In some cases, the considered rulings occurred at the
summary judgment stage and in others at the directed verdict or JNOV stages of
the proceedings. See Dean, 321 S.C. at 365-66, 468 S.E.2d at 648 (affirming the
circuit court's grant of directed verdict when the plaintiff initially discovered a
crack in her building instead of when a second crack and subsequent damage
appeared because "the fact that [the plaintiff] may not have comprehended in 1984
that the original crack would expand causing the building to ultimately buckle is
immaterial"); Barr v. City of Rock Hill, 330 S.C. 640, 645-46, 500 S.E.2d 157, 160
(Ct. App. 1998) (affirming the grant of summary judgment when four annual
termite reports indicated excessive moisture in a plaintiff's home's crawl space and
an engineering report two years later revealed numerous defects unrelated to
moisture and the plaintiff filed suit two years after that report); Allwin, 426 S.C. at
20-21, 825 S.E.2d at 717 (affirming the grant of summary judgment when the
plaintiff was made aware of water intrusion, roofing defects, and further
construction deficiencies despite the plaintiff's pursuing of "a conservative but
conscious course of action in response to conflicting opinions" about the extent of
the damage).

Here, Centex challenges the circuit court's denial of its JNOV motions. "In
considering a JNOV, the [circuit court] is concerned with the existence of
evidence, not its weight," and "neither [an appellate] court, nor the [circuit] court
has authority to decide credibility issues or to resolve conflicts in the testimony or
the evidence." Curcio v. Caterpillar, Inc., 355 S.C. 316, 320, 585 S.E.2d 272, 274
(2003) (citations omitted). "The jury's verdict must be upheld unless no evidence
reasonably supports the jury's findings." Id. "A motion for JNOV may be granted
only if no reasonable jury could have reached the challenged verdict." Gastineau
v. Murphy, 331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998).

At trial, Centex focused heavily on the "smoking gun" statement from the 2006
Board meeting minutes about double- and triple-hung windows, arguing the Board
was put on notice of a window defect in 2006 and, had it acted on that notice, it
would have triggered a full-blown investigation revealing all the damages alleged
in the lawsuit. On cross-examination, Spencer was asked about that point:

Q. Okay. If the board would have hired an
engineering expert back in 2006 instead of waiting
ten years later, then this whole thing -- whatever
is causing the problems you say existed with the
windows -- could have been fixed back in 2006
rather than waiting until now, right?
A. There was not a need that we saw to hire an
engineer in 2006 to look at windows. Mr. Gornet is
our property manager. It is not uncommon in a
board meeting for property managers to throw
offhand comments. It doesn't necessarily mean that
the board should act on them.

On redirect, Spencer testified that the Board did not know about the original
construction defects until 2016.

Centex also asked Clements about the same statement regarding the double- and
triple hung window in the Board's 2006 minutes:

Q. You testified about a lot of deficiencies here today.
My question to you is: If in 2006-- let me ask you this:
Were you here this morning to hear the testimony of Mr.
Spencer?

A. Yes.

Q. And did you hear him talk about the board meeting
where it was discussed by the property manager, and
recommended by the property manager, that, look, there
is a problem with these windows and you all need to have
it investigated by an engineer to determine whether it
relates to original construction or not? Did you hear
that?

A. Yes.

Q. If you had done that inspection back in 2006, and the
board followed that recommendation and hired you or an
engineer who do these inspections, is there any reason
why any of these claimed deficiencies that you testified
about here today would not have been discovered?

A. I don't believe that is the case because what they were
talking about this morning is just described as a gap at
the top of a window. It's not representative of all of the
issues we talked about here today.
Q. I understand, but if an engineer was called out and
said, look, we need you to look at this, that engineer
could have looked at that and very easily looked at all of
the other deficiencies and made a full investigation about
everything you found?

A. I don't think anyone would reasonably think you
would go from a small gap being described at a window
and that would be translated into a full investigation the
way -- like what I was hired to do.

Q. You are a forensic architect?

A. Yes.

Q. And if you had been called out by the association in
2006 and they said we think there might be an issue with
water intrusion and windows, and we think you need to
do a forensic investigation, you would have
recommended that they do a full investigation, correct?

A. I don't know that I would have. I would have
potentially looked at the things that they wanted me to
look at at the time. I don't see any evidence that that is
something that would have been correlated into a full
investigation like I was asked to do in this case at this
time.

Clements also defined a hidden defect as one you cannot see and indicated he had
found hidden defects in multiple areas around the complex.

Centex's forensic engineering expert, Carter, indicated that had the Board "taken
action" or performed proper maintenance in 2006, it would have stopped some of
the damage from occurring. He testified:

Q. Okay. What is the impact of not taking action of a
leaking window in 2006 when you are looking at it now
17 years later?
A. I doubt very seriously that this would be an issue
today if the recommendation from the property manager
had been followed. There is no guarantee. As I
mentioned earlier, in the real world, things happen, but
it's not going to happen to the magnitude that it is
happening here if it is properly maintained. It would be
nice to have a non-maintenance required house, car. It
doesn't happen. If you don't maintain your car or your
house, you are going to have problems, and it is
true for this building. It's up to the homeowners[']
association to make the repairs to do the proper
maintenance of their facility.

This testimony went to mitigation of damages as well as the issue of notice.
At the JNOV hearing, the circuit court essentially stated it would not go behind the
jury's verdict, but noted that the statute of limitations question had been a "hurdle"
all along. The fact that a jury renders a decision does not abrogate the court's
responsibility to grant a JNOV motion if appropriate. However, testimony from
the experts in the case cut both ways as to notice, damages, and the cost of repair.
The jury was properly charged on the statute of limitations, and we cannot say it
was impossible for a reasonable jury to reach the verdict returned in this case.
Therefore, we conclude the circuit court did not err in denying the JNOV motions.

III. Statute of Repose

Centex also argues the circuit court erred in denying its directed verdict and JNOV
motions based on the statute of repose because Wedgewood offered no evidence
Centex had not taken at least slight care in constructing the condominiums,
therefore precluding the gross negligence finding required to avoid the statute of
repose. We disagree.

Section 15-3-640 of the South Carolina Code (2005) provided: "No actions to
recover damages based upon or arising out of the defective or unsafe condition of
an improvement to real property may be brought more than thirteen years after
substantial completion of the improvement." 2 However, this limitation is

2
The statute has since been modified and now provides for an eight-year time
period. See S.C. Code Ann. § 15-3-640 (Supp. 2024) ("No actions to recover
damages based upon or arising out of the defective or unsafe condition of an
not available as a defense to a person guilty of fraud,
gross negligence, or recklessness in providing
components in furnishing materials, in developing real
property, in performing or furnishing the design, plans,
specifications, surveying, planning, supervision, testing
or observation of construction, construction of, or land
surveying, in connection with such an improvement, or to
a person who conceals any such cause of action.

S.C. Code Ann. § 15-3-670(A) (Supp. 2024). "For the purposes of subsection (A),
the violation of a building code of a jurisdiction or political subdivision does not
constitute per se fraud, gross negligence, or recklessness, but this type of violation
may be admissible as evidence of fraud, negligence, gross negligence, or
recklessness." S.C. Code Ann. § 15-3-670(B) (Supp. 2024).

Centex's argument hinges on Wedgewood's emphasis on building code violations
at trial. Centex maintains code violations alone do not constitute gross negligence,
and it presented considerable evidence regarding Centex's inspection, review, and
quality protocols. However, the law clearly states code violations are admissible
as evidence of gross negligence. As Carter testified, code violations can vary in
degree and severity. Under these circumstances, it was for the jury to determine
whether gross negligence was established based on the evidence presented and the
law that was charged. The circuit court correctly charged "gross negligence" in the
manner agreed upon by the parties as follows:

Now, Wedgewood Condominium Association claims that
the Centex entities were grossly negligent in the
construction of the Wedgewood condominiums. Gross
negligence is the intentional, conscious failure to do
something, which is incumbent upon one to do, or the
doing of a thing intentionally that one [ought not] to do.
While negligence is the failure to exercise due care, gross
negligence is the failure to exercise even the slightest
care. Gross negligence is a relative term and means the
absence of care that is necessary under the circumstances.
Gross negligence denotes the failure to exercise a slight

improvement to real property may be brought more than eight years after
substantial completion of the improvement.").
degree of care. Gross negligence involves an intentional,
conscious failure to do something which one ought to do,
or the doing of something that one ought not to do. A
defendant is guilty of gross negligence if they are so
indifferent to the consequences of their conduct as to not
give slight care to what they are doing.

Recklessness implies the doing of a negligent act
knowingly. When a person acts negligently, and he
realizes that he is acting negligently, the law says he is
reckless, willful, and/or wanton. Whichever term you
prefer, they mean the same thing; that is, the conscious
failure to exercise due care. The words "recklessness,"
"willfullness," and "wantonness" are synonymous. The
terms are used to describe a conscious failure to exercise
and observe reasonable or due care.

Recklessness is distinguished from negligence. As I told
you, negligence is the failure to use due care. Negligence
is carelessness. Negligence is failure by omission or
co[m]mission to exercise due care as a person of ordinary
reason and prudence would exercise in the same
circumstances.

Recklessness is a higher degree of culpability and
responsibility. Recklessness signifies a conscious failure
to exercise due care. Recklessness is a conscious
indifference to the rights of the plaintiff or a reckless
disregard of the rights of the plaintiff. Recklessness is an
awareness of wrongful conduct in a continuation to act
regardless of consequences.

Ladies and gentlemen, just so it is clear, while a negligent
entity is one who acts carelessly, an entity whose behavior
is reckless, willful, and/or wanton is not only careless in
their actions, but also aware that they are careless.

The test for determining whether a tort may be deemed
reckless, willful, or wanton is whether it was committed
in such a manner and under such circumstances that a
person of ordinary reason or prudence would have been
conscious of it as an invasion of the rights of the injured
party.

The circuit court also correctly charged the law regarding code violations:

Now, I charge you that a violation of a building code
violates a legal duty and is negligence per se and is
evidence of recklessness and willfulness. Violation of a
building code does not constitute recklessness,
willfulness, and wantonness per se, but violation of a
building code is some evidence that you may consider that
a contractor acted recklessly, willfully, and wantonly.

Wedgewood presented evidence and testimony that Centex violated building codes
and industry standards and that Centex was apprised of at least some of these
deviations at the time of construction. In addition, the law on gross negligence was
fully and correctly charged. Therefore, we affirm the circuit court's denial of
Centex's motion for JNOV.

IV. Unlicensed Subcontractors

Finally, Centex contends the circuit court erred in refusing to give its requested
charge regarding unlicensed contractors.3 We disagree.

"When reviewing a jury charge for alleged error, an appellate court must consider
the charge as a whole in light of the evidence and issues presented at trial." Welch
v. Epstein, 342 S.C. 279, 311, 536 S.E.2d 408, 425 (Ct. App. 2000). "An appellate
court will not reverse the trial court's decision regarding jury instructions unless the
trial court committed an abuse of discretion." Cole v. Raut, 378 S.C. 398, 404, 663
S.E.2d 30, 33 (2008). "An abuse of discretion occurs when the trial court's ruling
is based on an error of law or is not supported by the evidence." Id. "Where a
request to charge is timely made and involves a controlling legal principle, a
refusal by the trial judge to charge the request constitutes reversible error."
Fairchild v. S.C. Dep't of Transp., 398 S.C. 90, 104, 727 S.E.2d 407, 414 (2012)

3
Centex's Issue on Appeal addresses the propriety of admitting evidence of its use
of unlicensed subcontractors. However, the argument is solely focused on the
circuit court's refusal to give the requested jury instruction. Therefore, our analysis
is limited to that issue.
(quoting Ross v. Paddy, 340 S.C. 428, 437, 532 S.E.2d 612, 617 (Ct. App. 2000)).
However, "[i]t is not error for the trial judge to refuse a specific request to charge
when the substance of the request is included in the general instructions."
Burroughs v. Worsham, 352 S.C. 382, 391-92, 574 S.E.2d 215, 220 (Ct. App.
2002). "To warrant reversal, the refusal to give a requested jury charge must be
both erroneous and prejudicial." Fairchild, 398 S.C. at 104, 727 S.E.2d at 414.

Section 40-11-270(E) (Supp. 2024) of the South Carolina Code states:

Licensees may utilize the services of unlicensed
subcontractors to perform work within the limitations of
the licensee's license group and license classification or
subclassification; provided, the licensee provides
supervision. The licensee is fully responsible for any
violations of this chapter resulting from the actions of
unlicensed subcontractors performing work for the
licensee.

Centex requested this statute be charged, but the circuit court denied the request,
explaining it commented too closely on the facts of the case and contained "too
many dots in the middle." Wedgewood had requested the flipside of this charge,
asking that the circuit court instruct "You may consider whether a contractor is
unlicensed in making your decision." The circuit court had also denied this request
as it commented too closely on the facts.
Centex's expert, Carter, had stated in his deposition that he would not use
unlicensed subcontractors. His trial testimony acknowledged this statement.
Q. Now, Mr. Carter, didn't you tell me in your deposition
that you wouldn't hire unlicensed contractors?

A. I personally would not.

Q. Yes, sir. You did say that?

A. I did, yes.

Q. So you would never hire an unlicensed contractor to
work on your job?
A. Well, our firm had a requirement that the
subcontractor must be licensed and bonded. There are
subcontractors that may be licensed, but they can't get
bonds.

Q. All right.

A. But that's my company. That doesn't mean it is a
requirement on the rest of the industry.

Q. You are aware, are you not, that the framing
contractor and the brick mason on this job were not
licensed?

A. I do not know that.

Q. Have you seen documents in evidence that show that?

A. I don't remember seeing that.

Q. Would you like to see them?

A. No, sir, I don't have to see them.

Q. Would you take my word that they are both
unlicensed?

A. I have no reason to believe it or disbelieve it.

(emphasis added).

Construction manager Martin was also cross-examined regarding the use of
unlicensed subcontractors on this job and generally as part of Centex's building
process:

Q. Now, have you -- you submitted a subcontract
orientation package, I believe; is that correct?

A. That's correct.
Q. Would you agree that Centex at times had unlicensed
contractors on the job?

A. Not that I'm aware of.

Q. Did you require them to have licenses?

[CENTEX]: Objection, Your Honor. May we approach?

THE COURT: You may.

(Whereupon, a bench conference was had out of the
hearing of the jury.)

Q. So we've heard from you that Centex was real
interested in making sure they had the greatest
subcontractors; is that right?

A. Not sure I testified to that, but yes we hired subcontractors to
provide quality work for us.

Q. And some of the subcontractors at Wedgewood were
unlicensed and did not have licenses, correct?

A. I don't know that specifically.

Q. I'll show you this exhibit from [the Department of
Labor, Licensing[,]and Regulation (LLR)] and I'll
have you look at the last page. AK Construction, if you
would, tell me whether or not, based on that document,
that AK Construction was licensed or unlicensed?

A. Yes. It states that someone found evidence they did
not hold a license.

Q. And they were working at Wedgewood?

A. I don't know if they performed work at Wedgewood,
personally.
Q. Let me show you BR Brick. Do you know BR Brick?

A. I do not.

Q. BR Brick did the brick work at Wedgewood. Did they
have a license according to LLR?

A. It says they found no evidence of them holding a
license.

Q. And in your subcontractor packet, one of the things
you wanted to make sure about when you hired a
subcontractor is that they had all the credentials, correct?

A. Yeah. We would check references and verify that they
were credible subcontractors, yes.

Q. And these two did major work on siding and brick,
and they did not have a license, right?

A. I think you stated that AK Construction was a framer,
and BR Brick did brick work. It sounds like they did not
have licenses, but I don't believe that is required.

Q. But that was a mistake by Centex by its own
policy, correct?

A. I don't know that it was a policy or not.

Q. Let's look back at your new subcontractor orientation
package. What exhibit do you have there, sir?

A. 87.

Q. So Page 3. The mission statement was something that
you just talked about, right?

A. Correct.

Q. "To build quality homes and neighborhoods that
exceed the expectations that we have established with
our customers"; is that right?

A. Yes.

Q. And you think that having unlicensed subcontractors
would mean building quality homes?

A. I'm not certain you would have to hold a license to
build a quality home.

Q. So you would let unlicensed subcontractors work on
your home; is that right?

A. It depends what trade they perform. I don't think you
have to -- I don't think that a license is required to
provide cleaning services or anything.

Q. So you don't draw a correlation to the problems
behind the brick and the framing and the siding with the
fact that they are using unlicensed subcontractors; is that
right?

A. I do not, no.

Q. You think that it is okay for a quality home to have
unlicensed subcontractors, correct?

A. I think we did many things to verify that our
subcontractors were qualified to perform work, and that
included checking references and things of that nature.

Q. But checking licenses with the government, that is a
basic thing to be done, right?

A. I don't know that it is a basic thing, but it can be done.

Q. And you did do it, because some of the others are
licensed, correct?
A. Yes. Absolutely, many are.

Q. But those two aren't.

(emphasis added).

The circuit court declined to charge on the issue of unlicensed subcontractors in a
way that either suggested to the jury that having unlicensed subcontractors was
wrong, as requested by Wedgewood, or permissible in the limited circumstances
addressed by the statute. Both Martin and Carter indicated their understanding that
using only licensed subcontractors was not a requirement. While it fell within the
circuit court's discretion to charge the statute under these circumstances, we find
declining to charge it as requested did not constitute reversible error.

V. Additional Sustaining Ground—Master Deed

As an additional sustaining ground, Wedgewood argues the one-year warranty
given by Centex is still in effect because Centex never turned over its rights to
Wedgewood in writing pursuant to the terms of the Master Deed. However, the
plain language of the deed states the warranty expired after one year. It provided:

3.6 Limited Warranty From Developer. FOR A PERIOD
OF ONE (1) YEAR FROM THE DATE OF
COMPLETION OF CONSTRUCTION . . . THE
DEVELOPER SHALL AT NO COST TO THE
ASSOCIATION REPAIR OR REPLACE (IN THE
DEVELOPER'S DISCRETION) ANY PORTIONS OF
THE COMMON AREA . . . WHICH ARE DEFECTIVE
AS TO MATERIALS OR WORKMANSHIP. . . . Each
Owner, in accepting a deed from the Developer or any
other party to a Unit, expressly acknowledges and agrees
that this Section 3.6 establishes the sole liability of the
Developer to the Association and the Owners related to
defects in the Common Area and the remedies available
with regard thereto. At the end of the one (1) year
warranty period referred to hereinabove in this Section
3.6, the Developer will assign to the Association in
writing all of its rights, claims, causes of action and
demands which it has or which may thereafter accrue
against all other people who may be responsible for the
design and/or construction of the Common Area.

Wedgewood argues the assignment in writing was a trigger or condition precedent
to end the warranty obligation on the common area. However, that argument is
simply without merit as the plain language in the master deed indicates the
warranty terminated at the conclusion of one year.

CONCLUSION

To summarize, we affirm the circuit court's denial of Centex's JNOV motions with
respect to the statute of limitations and statute of repose and find no reversible
error in the circuit court's handling of the evidence and instructions relating to
unlicensed contractors. Therefore, the orders of the circuit court are

AFFIRMED.

MCDONALD and VINSON, JJ., concur.