REGIS M. BUREK and wife,
LYNDA G. BUREK,
    Plaintiffs
                                        Dare County
v .                                     No. 04-CVS-133

BERNARD MANCUSO, JR. and
wife, FRANCES MANCUSO,
    Defendants

    Appeal by plaintiffs from an order entered 14 February 2007 by Judge Jerry R. Tillett in Dare County Superior Court. Heard in the Court of Appeals 28 November 2007.

    Sharp, Michael, Outten & Graham, L.L.P., by David R. Tanis, for plaintiff-appellants.

    Hornthal, Riley, Ellis & Maland, L.L.P., by M. H. Hood Ellis, for defendant-appellees.

    HUNTER, Judge.

    Regis M. Burek and Lynda G. Burek (“plaintiffs”) brought suit against Bernard Mancuso, Jr., and Frances Mancuso (“defendants”) for breach of implied warranty of habitability for a home plaintiffs had purchased. On 14 February 2007, the trial court granted defendants' motion to dismiss and, alternatively, defendants' motion for summary judgment. Plaintiffs now appeal. After careful consideration, we reverse and remand.
    Defendants purchased Lot 129, Four Seasons in Duck, North Carolina, from the subdivision developer, Duck Hunt Club, LLC. Thelot fronted the Currituck Sound and had been bulkheaded by the developer. Defendants contracted with Mancuso Development, Inc. for the construction of a house on the lot and a swimming pool. A certificate of compliance/occupancy was issued by Dare County to Mancuso Development as the builder and contractor of the dwelling on the lot in question. Defendants are Mancuso Development's directors, officers, and shareholders.
    The swimming pool was built on top of the land restrained and supported by the bulkhead constructed by the developer and by a second bulkhead constructed by Mancuso Development. Upon completion of the residence, pool, and second bulkhead, the property was sold by defendants to plaintiffs on 24 February 2003. Thereafter, defendants immediately leased the property from plaintiffs for use as a model home for one year.
    In October 2003, plaintiffs complained that the pool fence was sagging. Defendants also noticed that the bulkhead constructed by the developer appeared to be bowing out and had an engineer examine the potential problem. Plaintiffs also employed two engineers who determined that the problems plaintiffs were experiencing were proximately caused by the failure of the lot bulkhead constructed by the developer and not the bulkhead constructed by Mancuso Development.
    Plaintiffs filed an insurance claim for property damage against Mancuso Development for the repair costs and expenses associated with the lot bulkhead failure. On 17 December 2003, Mancuso Development's insurance company denied the claim on theground that Mancuso Development was neither liable nor responsible for the damages suffered by plaintiffs' property. Thereafter, plaintiffs brought suit against defendants, but not Mancuso Development, on 12 March 2004. As stated above, plaintiffs' suit was ultimately dismissed for failure to state a claim and, alternatively, upon grant of summary judgment.
    On appeal, this Court must address two issues: (1) whether the trial court erred in granting defendants' motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure; and (2) whether the trial court erred in granting defendants' motion for summary judgment in the alternative. We address each issue in turn.

    Plaintiffs first argue that the trial court erred in granting defendants' motion to dismiss. We agree.
    Upon a motion to dismiss pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), the court must determine, as a matter of law, whether “'the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory[.]'” Whitehurst v. Hurst Built, Inc., 156 N.C. App. 650, 653, 577 S.E.2d 168, 170 (2003) (citation omitted). Complaints must be liberally construed and should not be dismissed “'unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.'” Id. (citation omitted). Rulings on a motion todismiss are reviewed de novo by this Court to determine the legal sufficiency of the pleadings. Id.
    “A motion to dismiss is properly granted in three circumstances: (1) where the complaint reveals that no law supports the claim; (2) a fact essential to the claim is missing; or (3) when a fact in the complaint defeats the plaintiff's claim.” Sisk v. City of Greensboro, ___ N.C. App. ___, ___, 645 S.E.2d 176, 178 (2007) (citing Hare v. Butler, 99 N.C. App. 693, 696, 394 S.E.2d 231, 234, disc. review denied, 327 N.C. 634, 399 S.E.2d 121 (1990)). With these standards in mind, we now turn to the merits of plaintiffs' appeal.
    A claim for a breach of implied warranty that a recently constructed dwelling, including all its fixtures, is sufficiently free from major structural defects and constructed in a workmanlike manner, is a legally recognized claim in this state. Hartley v. Ballou, 286 N.C. 51, 62, 209 S.E.2d 776, 783 (1974). This implied warranty, however, may only be enforced against a “vendor, if he [or she are] in the business of building such dwellings[.]” Id. (emphasis added).
    The central dispute between the parties in their briefs to this Court on the issue of the trial court's grant of defendants' motion to dismiss is whether defendants were a “vendor” under the Court's holding in Hartley. Although at its core this is a question of law, in making that legal determination on a Rule 12(b)(6) motion to dismiss, we are bound by the factual allegations in the complaint.    In this case, plaintiffs alleged that defendants “were the owners” of the lot in question, and were “in the business of building dwellings[.]” Plaintiffs, in their brief, ask this Court to view the Hartley holding as providing vendees with the implied warranty regardless of whether the vendor actually built the residence in question, so long as they are in the business of building such dwellings. Defendants, naturally, take the opposite position. For purposes of a Rule 12(b)(6) motion to dismiss, however, it is immaterial as to which rule is adopted; even under defendants' interpretation of Hartley, construing the complaint liberally, plaintiffs still would have stated a valid cause of action based on the allegations quoted above. Accordingly, the trial court erred in granting defendants' motion to dismiss.

    Plaintiffs next argue that the trial court erred in granting defendants' motion for summary judgment. We agree.
    “We review a trial court's order for summary judgment de novo to determine whether there is a 'genuine issue of material fact' and whether either party is 'entitled to judgment as a matter of law.'” Robins v. Town of Hillsborough, 361 N.C. 193, 196, 639 S.E.2d 421, 423 (2007) (citation omitted) (emphasis added). In determining whether there is a genuine issue of material fact, courts review “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any[.]” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2007). Although the evidence on a summary judgment motion is viewed in thelight most favorable to the non-moving party, judgment as a matter of law is appropriate where a defendant establishes an insurmountable defense in bar of the claim or negates an essential element of a plaintiff's cause of action. Rose v. Guilford Co., 60 N.C. App. 170, 172, 298 S.E.2d 200, 202 (1982).
    Here, defendants contend that undisputed material facts either establish an insurmountable defense or negate an essential element of plaintiffs' claim. Specifically, defendants contend that the following facts are undisputed and material: (1) defendants did not build the bulkhead which failed; and (2) defendants did not build the dwelling. Because defendants carry the burden of persuasion on a motion for summary judgment, we address each of these arguments in turn.
    As to the builder of the failed bulkhead, it is undisputed that the developer, not defendants or Mancuso Development, was responsible for its construction. Defendants then argue that because of this fact, even if this Court were to find them as having granted plaintiffs an implied warranty of habitability, they did not do so as to the failed bulkhead. Defendants' argument on this point is without merit.
    Among the items implicitly warranted by the vendor in the sale of a dwelling are “all its fixtures[.]” Hartley, 286 N.C. at 62, 209 S.E.2d at 783. “'A fixture has been defined as that which, though originally a movable chattel, is, by reason of its annexation to land, or association in the use of land, regarded as a part of the land, partaking of its character[.]'” Little v.National Service Industries, Inc., 79 N.C. App. 688, 692, 340 S.E.2d 510, 513 (1986) (emphasis added) (quoting 1 Thompson on Real Property, 1980 Replacement, § 55, at 179 (1980)). Clearly, a bulkhead, under this definition, is a fixture due to its annexation to the land. See, e.g., Shell Island Homeowners Ass'n v. Tomlinson, 134 N.C. App. 217, 219, 517 S.E.2d 406, 409 (1999) (quoting 15A N.C. Administrative Code 7H.0308(a)(1)(B) (describing a “bulkhead” as a permanent erosion control structure)); Floraday v. Don Galloway Homes, 340 N.C. 223, 223-24, 456 S.E.2d 303, 304 (1995) (holding that a builder is liable for negligent construction of a retaining wall when the wall materially affects the structural integrity of the house). Accordingly, defendants are unable to avoid the implied warranty of habitability merely because they did not build the structure.
    Defendants next contend that because they did not construct the dwelling, but a company for which they served as its officers and directors did, summary judgment in their favor was appropriate. We disagree and instead find an issue of material fact: Whether defendants, as the vendors of the property and sole officers and directors of the building corporation, for which defendant-Bernard Mancuso, Jr. was the contractor, constitute a builder-vendor under Hartley.
    This Court has applied the implied warranty of habitability to vendors that contracted with their own company to build the property where the vendors: (1) signed the initial contract with the vendee in their individual capacity; (2) the builder was notmentioned until five days before closing and after a majority of the construction had been completed; and (3) where there was ample evidence that the vendors were actively involved in the construction of the vendee's residence. Mitchell v. Linville, 148 N.C. App. 71, 79-80, 557 S.E.2d 620, 626 (2001).
    Here, construing the evidence in the light most favorable to the non-movant, defendants signed the contract with the vendee- plaintiffs in their individual capacity, plaintiffs were never made aware that defendants intended to contract the building responsibilities to a separate company, and defendants, by virtue of being the sole officers and directors of the company and by defendant-Bernard Mancuso, Jr. serving as the corporation's contractor, were actively involved in the construction of plaintiffs' home. In essence, it appears as though defendants were attempting to avoid the implied warranty of habitability by contracting with their own corporation. Similar facts and circumstances being present in this Court's opinion in Mitchell, we conclude that the trial court erred by granting defendants' summary judgment motion.

    In summary, we hold that the trial court erred in granting defendants' motion to dismiss and their motion for summary judgment.
    Reversed and remanded.
    Judges CALABRIA and STROUD concur.
    Report per Rule 30(e).

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