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1. Unjust Enrichment--overbilling of contract--cause of action in contract
The trial court erred by permitting an unjust enrichment counterclaim in an action arising
from environmental consulting contracts where plaintiff-consultant contended that it had not
received full payment and defendant counterclaimed for unjust enrichment, contending that
plaintiff had been paid for work not performed. The contracts govern the relationship between
the parties and an action for breach of contract rather than unjust enrichment is the proper cause
of action.
2. Pleadings--amendments--undue delay--denied
The trial court did not abuse its discretion in an action arising from environmental
consulting services by denying defendant's motion to amend its previously amended pleadings to
include a claim for unfair or deceptive acts or practices. The trial judge denied the motion
because it came “rather late in the case,” which is interpreted as the trial court's determination
that the timing of the motion was a result of undue delay.
3. Costs--court's discretion--not reviewable
The trial court's decision not to tax plaintiff with full costs in an action arising from an
environmental services consulting contract was not reviewable by the Court of Appeals where
the costs assessed were governed by N.C.G.S. § 6-20. Costs not allowed as a matter of course
under N.C.G.S. § 6-18 and § 6-19 may be allowed in the court's discretion under N.C.G.S. § 6-
20.
4. Attorneys--fees--contract clause
The trial court did not err in an action arising from contracts for environmental
consulting services by not taxing attorneys' fees against plaintiff. Contractual provisions for
attorney fees are invalid in the absence of statutory authority as a general rule; this case does not
qualify as an exception.
5. Contracts--professional services--evidence of standard of care--common knowledge
exception--not applicable
The trial court did not err in an action arising from contracts for environmental services
by granting plaintiff's motion for a directed verdict on defendant's counterclaim for breach ofcontract where the court declared that defendant's failure to offer expert testimony made its
evidence insufficient to prove the standard of care owed by plaintiff as a matter of law.
Although defendant contended that it did not need to introduce expert testimony under the
“common knowledge” exception, this case involved the standard of care utilized by professional
engineers for environmental cleanup and the Court of Appeals' review of volumes of transcripts
and exhibits led to the conclusion that expert testimony was required to explain and prove the
standard of care.
6. Contracts--language--plain and unambiguous meaning
The trial court did not err in an action arising from contracts for environmental services
in granting a directed verdict on defendant's breach of contract counterclaim where defendant
contended that plaintiff had been obliged to fully delineate the extent of environmental
contamination, but the language of the contract stated that the scope of work was to better
delineate the scope of pollution. The trial court interpreted the contract by its plain,
unambiguous meaning.
7. Statute of Limitations--environmental consulting services--continuing course of
treatment doctrine--not applicable
The trial court did not err by granting a directed verdict on negligence counterclaims in
an action arising from contracts for environmental consulting services based upon the four-year
statute of repose in N.C.G.S. § 1-15(c). Although defendant-Wysong argued that the continuing
course of treatment doctrine pushed back the start of the four-year time limit, the continuing
course of treatment doctrine has been adopted with regard to medical malpractice and the Court
of Appeals declined to expand the doctrine's breadth to encompass negligence arising from the
provision of professional engineering services between sophisticated corporate parties.
8. Statute of Limitations--environmental consulting services--acts giving rise to causes
of action
The trial court did not err by granting plaintiff's motion for a directed verdict under
N.C.G.S. § 1-15(c) on negligence counterclaims arising from environmental consulting contracts
where, according to defendant-Wysong's expert witness, no action after a spill was a departure
from the standard of care, so that any acts giving rise to the causes of action occurred before the
spill, the spill was discovered on 15 July 1991, and Wysong's counterclaim was not filed until
27 September 1995. The dismissed counterclaims were not preserved within four years from the
last act of the defendant giving rise to the cause of action.
9. Contracts--action for breach--jury's verdict--not contrary to evidence
The trial court properly denied plaintiff-Delta's motions for a directed verdict, judgment
nov, and a new trial in an action for monies due under a contract for environmental consulting
services where Delta's assignment of error was based on the contention that the jury's verdict
was contrary to law and the greater weight of the evidence. While plaintiff-Delta's evidenceincluded bills for services rendered and not paid, defendant-Wysong presented evidence that
Delta's billing methods were unreliable and inaccurate and the verdict simply reflected the jury's
scepticism as to the reliability or credibility of Delta's evidence or witnesses.
10. Contract--action for breach--nominal damages--instructions
A breach of contract action for monies due under environmental consulting contracts was
remanded with an instruction that the trial court enter judgment awarding at least nominal
damages where the jury concluded that defendant had breached its promise to pay for services
rendered but awarded no damages. Violation of a legal right entitles a party to at least nominal
damages; however, in this case, the jury instructions did not include an instruction that a finding
in favor of the plaintiff on the first issue required an award of at least nominal damages. Appeal by defendant and cross appeal by plaintiff from
judgment entered 4 April 1997 by Judge Charles C. Lamm, Jr. in
Mecklenburg County Superior Court. Heard in the Court of Appeals
16 November 1998.
Kennedy, Covington, Lobdell & Hickman, L.L.P., by Kiran H.
Mehta and Stanford D. Baird, and Ruff, Bond, Cobb, Wade &
Bethune, L.L.P., by Hamlin L. Wade, for plaintiff-appellee.
Adams, Kleemeier, Hagan, Hannah & Fouts, by Amiel J. Rossabi
and David S. Pokela, for defendant-appellant.
SMITH, Judge.
In the late 1980's, extreme environmental contamination and
pollution of soil and groundwater occurred at the manufacturing
facility of Wysong & Miles Company (Wysong) in Greensboro, North
Carolina. Wysong sought an environmental consultant to help it
deal with the pollution and contamination. Wysong hired Delta
Environmental Consultants of North Carolina, Inc. (Delta), a
Charlotte-based subsidiary of a national environmental consulting
and engineering firm, to assist Wysong in formulating and
implementing a cleanup plan. In March or April 1988, Delta and
Wysong entered a service contract for environmental services
(first contract). On 24 February 1994, Delta and Wysong entered
a second contract, which remained effective until Wysong
terminated the Contract in April 1995. Over the course of theirseven-year relationship, Delta performed tasks and billed Wysong
on a time, fees, and materials basis. From October 1994 to April
1995, Wysong failed to pay Delta for the invoices it submitted
each month. Despite being delinquent in payment, Wysong
continued to ask Delta to perform work and in January 1995,
assured Delta that it would bring its account current. In April
1995, Delta brought suit to collect $29,370.58. On 18 January
1996, Wysong amended its answer and counterclaimed against Delta.
Wysong counterclaimed alleging unjust enrichment because Delta
had received payment for work that had not actually been
performed. Wysong's counterclaim also alleged negligence in that
Delta failed to perform its remedial work to the level of skill
ordinarily exercised by members of its profession. Wysong's
motion to amend its answer and counterclaim to include
allegations of unfair or deceptive acts or practices in commerce
in violation of N.C. Gen. Stat. § 75-1.1 was denied.
The matter was heard before a duly impaneled jury on 11
February 1997. The jury returned the following verdicts:
PLAINTIFF, DELTA, CLAIM:
1. Does the Defendant, Wysong, owe the
Plaintiff, Delta money on account? YES
2. What amount if any does the Defendant,
Wysong, owe the Plaintiff, Delta, on account?
NONE
DEFENDANT, WYSONG, COUNTERCLAIMS:
I.
1. Was the Plaintiff, Delta, unjustly
enriched by receiving payments from the
Defendant, Wysong, for work that was not
performed or costs that were not incurred in
relation to work performed? YES
2. What amount, if any, should the
Defendant, Wysong, recover of the Plaintiff,
Delta, based upon unjust enrichment? $225,000
II.
1. Was the Defendant, Wysong, damaged by
the negligence of the Plaintiff, Delta? Yes
2. What amount of damages has the
Defendant, Wysong, sustained as a proximate
result of any negligence? $9,000
Judge Lamm's order and judgment was filed on 8 April 1997. On 14
April 1997, Judge Marvin K. Gray entered an order denying Delta's
motion for partial summary judgment and Wysong's motion for
summary judgment. Judge Gray's order denied Wysong's motion to
amend its previously amended answer and counterclaim and declared
all other motions moot. On 24 July 1997, Judge Lamm filed an
order that denied Delta's motions for judgment notwithstanding
the verdict and for new trial. This order also denied Wysong's
motion to amend/alter the judgment but granted Wysong's motion
for a conditional new trial on the issue of damages in its unjust
enrichment claim. Defendant and plaintiff appeal.
Wysong filed its notice of appeal on 8 August 1997, and
Delta filed its notice of appeal on 15 August 1997. Wysongappeals from the 14 April 1997 order of Judge Gray denying their
motion to amend, oral orders by Judge Lamm of 3 February 1997
allowing Delta's motion for directed verdict on several of
Wysong's negligence claims and dismissing Wysong's claim for
breach of contract, the order and judgment of 8 April 1997 taxing
only a small portion of costs against Delta, and the order of 24
July 1997 granting a partial new trial on the issue of damages
for Wysong's unjust enrichment claim. Delta appeals from oral
orders denying their motion for directed verdict and judgment
notwithstanding the verdict on Wysong's unjust enrichment claim.
For similar reasons they appeal from the order and judgment of 8
April 1997, and they also appeal from the order of 24 July 1997
denying Delta's motion for a new trial on Delta's payment on
account action.
[1]Wysong first seeks reinstatement of the verdict granting
Wysong damages for its unjust enrichment claim against Delta
arguing that the trial court erred by setting aside the jury
award. We disagree. It is well established that “[i]f there is
a contract between the parties[,] the contract governs the
claim[,] and the law will not imply a contract.” Booe v.
Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556, reh'g denied,
323 N.C. 370, 373 S.E.2d 540 (1988). Here, the first and second
contracts govern the relationship between the parties with regardto payment and services rendered. Thus, an action for breach of
contract, rather than unjust enrichment, is the proper cause of
action. Accordingly, we reverse the trial court's decision to
permit Wysong's unjust enrichment claim. Consequently, the trial
court's grant of a conditional new trial on the issue of damages
for unjust enrichment is reversed.
[2]Wysong next argues that the trial court erred when it
denied Wysong's motion to amend its previously amended pleadings
to include a claim for unfair or deceptive acts or practices in
commerce. Motions to amend are governed by N.C. Gen. Stat. §
1A-1, Rule 15 (1990). Generally, Rule 15 is construed liberally
to allow amendments where the opposing party will not be
materially prejudiced. See Members Interior Construction v.
Leader Construction Co. Inc., 124 N.C. App. 121, 476 S.E.2d 399
(1996), disc. review denied, 345 N.C. 754, 485 S.E.2d 56 (1997).
Despite cases cited by Wysong, our standard of review for motions
to amend pleadings requires a showing that the trial court abused
its discretion. See Isenhour v. Universal Underwriters, 345 N.C.
151, 478 S.E.2d 197 (1996). Denying a motion to amend without
any justifying reason appearing for the denial is an abuse of
discretion. See Coffey v. Coffey, 94 N.C. App. 717, 381 S.E.2d
467, disc. review allowed, 325 N.C. 705, 388 S.E.2d 450 (1989),
disc. review improvidently granted, 326 N.C. 586, 391 S.E.2d 40(1990). However, proper reasons for denying a motion to amend
include undue delay by the moving party and unfair prejudice to
the nonmoving party. See News and Observer Publishing Co. v.
Poole, 330 N.C. 465, 412 S.E.2d 7 (1992). Other reasons that
would justify a denial are bad faith, futility of amendment, and
repeated failure to cure defects by previous amendments. See
Chicopee, Inc. v. Sims Metal Works, 98 N.C. App. 423, 391 S.E.2d
211, plaintiff's disc. review allowed, 327 N.C. 426, 395 S.E.2d
674, defendant's disc. review denied, 327 N.C. 426, 395 S.E.2d
675, reconsideration of defendant's motion for disc. review
denied, 327 N.C. 632, 397 S.E.2d 76 (1990), withdrawn, 328 N.C.
329, 402 S.E.2d 826 (1991). When the trial court states no
reason for its ruling on a motion to amend, this Court may
examine any apparent reasons for the ruling. See Coffey, 94 N.C.
App. 717, 381 S.E.2d 467. In the instant case, the trial judge
denied the motion because it came “rather late in the case.” We
interpret this as the trial court's determination that the timing
of the motion was the result of undue delay. Wysong claims that
the trial court's ruling is an abuse of discretion. We disagree.
Wysong correctly cites Mosley & Mosley Builders, Inc. v. Landin,
Ltd., 97 N.C. App. 511, 389 S.E.2d 576, disc. review denied, 326
N.C. 801, 393 S.E.2d 898 (1990), for the proposition that in
showing prejudice (by undue delay, bad faith, etc.), the burdenis on the party opposing the motion to amend. However, in
Mosley, the plaintiff's amendment adding a claim for unfair or
deceptive acts or practices in commerce was allowed by the trial
court. There, this Court recognized that the defendant had not
met its burden in convincing the trial court of the existence of
prejudice. Here, however, the trial court was convinced by
Delta's argument and denied Wysong's motion to amend. Because
Wysong has failed to show an abuse of discretion, we find no
error in the trial court's denial of their second motion to
amend.
[3]Wysong next assigns error to the trial court's failure
to tax Delta with the full costs. Taxing of costs is governed by
Article 6 of the North Carolina General Statutes. N.C. Gen.
Stat. §§ 6-18 and 6-19 (1986) detail certain actions where costs
are allowed as a matter of course. Costs not allowed as a matter
of course under sections 6-18 and 6-19 may be allowed in the
court's discretion under N.C. Gen. Stat. § 6-20 (1986). The
court's discretion under section 6-20 is not reviewable on
appeal. See Minton v. Lowe's Food Stores, 121 N.C. App. 675, 468
S.E.2d 513, disc. review denied, 344 N.C. 438, 476 S.E.2d 119
(1996) (citing Chriscoe v. Chriscoe, 268 N.C. 554, 151 S.E.2d 33
(1966)) (emphasis added). In the instant case, Wysong's action
does not fall within the purview of sections 6-18 and 6-19. Therefore, the costs assessed by the trial judge are governed by
section 6-20 and are not reviewable by this Court.
[4]Wysong also argues that the trial court erred by not
taxing Wysong's attorneys' fees against Delta. We disagree. “As
a general rule[,] contractual provisions for attorney's fees are
invalid in the absence of statutory authority. This is a
principle that has long been settled in North Carolina and fully
reviewed by our Supreme Court . . . .” Forsyth Municipal ABC
Board v. Folds, 117 N.C. App. 232, 238, 450 S.E.2d 498, 502
(1994) (citing Stillwell Enterprises, Inc. v. Interstate
Equipment Co., 300 N.C. 286, 266 S.E.2d 812 (1980)). “[T]he
general rule has long obtained that a successful litigant may not
recover attorneys' fees, whether as costs or as an item of
damages, unless such a recovery is expressly authorized by
statute.” Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 289,
266 S.E.2d 812, 814 (1980). Wysong argues that public policy
can support exceptions to the general rule and that the trial
court erred by failing to tax Wysong's attorneys' fees against
Delta. For this proposition, Wysong cites Gram v. Davis, 128
N.C. App. 484, 495 S.E.2d 384 (1998) (allowing a legal
malpractice plaintiff to recover as damages, attorney's fees for
the cost of correcting the defendant attorney's negligence).
While exceptions to the general rule exist, we disagree withWysong's contention that their case merits qualification as an
exception. Our Supreme Court has stated that the general rule
invalidating attorney's fees clauses not authorized by statute
was derived from certain public policy considerations surrounding
promissory notes, deeds of trust, guaranties on promissory notes,
and commercial construction contracts. See Bromhal v. Stott, 341
N.C. 702, 706, 462 S.E.2d 219, 222, reh'g denied, 342 N.C. 418,
465 S.E.2d 536 (1995). According to the Bromhal Court, a
separation agreement differs from a commercial, arms-length
transaction. Id. Furthermore, “[t]he public policy rationale
for frowning upon contractual provisions for the recovery of
attorney's fees in the commercial and debtor-creditor context
simply does not apply to separation agreements.” Id. at 707, 462
S.E.2d at 222 (recognizing contractual provisions for the
recovery of attorney's fees in separation agreements as an
exception to the general rule). Despite the fact that the clause
in question was part of a contract for professional services,
this contract was entered into at arms length. Both parties were
sophisticated, and although Delta's knowledge of environmental
cleanup was superior to Wysong's, Wysong was nonetheless outside
Delta's realm of influence. Therefore, based on our Supreme
Court's decision in Bromhal, the instant case does not qualify as
an exception to the general rule. Accordingly, we find no errorin the trial court's taxing of costs.
[5]Wysong's fourth argument is that the trial court erred
when it granted Delta's motion for a directed verdict on Wysong's
claim for breach of contract. In reviewing a directed verdict,
this Court must determine whether the evidence taken in the light
most favorable to the non-moving party is sufficient as a matter
of law to be submitted to the jury. See Davis v. Dennis Lilly
Co., 330 N.C. 314, 411 S.E.2d 133 (1991). More specifically,
Wysong argues the trial court erred by declaring that Wysong's
failure to offer expert testimony made its evidence insufficient
to prove the standard of care owed by Delta as a matter of law.
Wysong argues that under the “common knowledge” exception, it did
not need to introduce expert testimony to prove that Delta failed
to use the level of care and skill ordinarily exercised by
members of its profession. This Court has stated that where the
common knowledge and experience of the jury is sufficient to
evaluate compliance with a standard of care, expert testimony is
not needed. See Little v. Matthewson, 114 N.C. App. 562, 442
S.E.2d 567, aff'd, 340 N.C. 102, 455 S.E.2d 160 (1995). However,
the application of the "common knowledge" exception has been
reserved for those situations where professional conduct is so
grossly negligent that a layperson's knowledge and experience
make obvious the shortcomings of the professional. See Little,114 N.C. App. 562, 442 S.E.2d 567 (citing Buckner v. Wheeldon,
225 N.C. 62, 33 S.E.2d 480 (1945), where infection arose from a
compound fracture that protruded through an open wound and was
not cleansed or sterilized before the bone was set and placed in
a cast). In the case sub judice, the standard of care utilized
by professional engineers for environmental cleanup was at issue.
Our review of volumes of transcripts and exhibits leads us to
conclude that this case certainly required expert testimony to
explain and prove the standard of care required of Delta.
Because Wysong offered no evidence to prove the standard of care,
we find no error in the decision of the trial court.
[6]Wysong also argues that the trial court interpreted the
contract in a manner contrary to law. Wysong claims that under
the 1988 contract, Delta was obliged to fully delineate the
extent of environmental contamination. The language of the
contract undercuts this assertion. The contract states, “The
proposed scope of work for the second phase is designed to
. . . better delineate the extent of the contaminant plumes from
the identified sources,” (emphasis added). The trial court
interpreted the contract by its plain, unambiguous meaning.
Delta's responsibility was not to fully define the area of
contamination. Rather, Delta only agreed to “better delineate”
the scope of pollution. Because the trial court properlyinterpreted the contracts and because this case is not
appropriate for the “common knowledge” exception, we find no
error in the trial court's decision to grant Delta's motion for
directed verdict on Wysong's breach of contract claim.
[7]Wysong's final argument is that the trial court erred
when it entered a directed verdict as to several of Wysong's
negligence counterclaims. In reviewing the trial court's
decision on a motion for directed verdict, we must determine
whether the evidence taken in the light most favorable to the
non-moving party is sufficient as a matter of law to be submitted
to the jury. See Davis, 330 N.C. 314, 411 S.E.2d 133. Here, the
trial court granted Delta's motion for a directed verdict based
upon the four-year statute of repose in N.C. Gen. Stat. § 1-15(c)
(1996). Section 1-15(c) provides:
Except where otherwise provided by
statute, a cause of action for malpractice
arising out of the performance of or failure
to perform professional services shall be
deemed to accrue at the time of the
occurrence of the last act of the defendant
giving rise to the cause of action: . . .
Provided nothing herein shall be construed to
reduce the statute of limitation in any such
case below three years. Provided further,
that in no event shall an action be commenced
more than four years from the last act of the
defendant giving rise to the cause of action
. . . .
Id. The statute of repose created by section 1-15(c), begins torun on the date of the “last act of the defendant giving rise to
the cause of action.” See Sharp v. Teague, 113 N.C. App. 589,
439 S.E.2d 792, disc. review granted, 336 N.C. 317, 445 S.E.2d
397 (1994) disc. review improvidently granted, 339 N.C. 730, 456
S.E.2d 771 (1995). Wysong argues that the continuing course of
treatment doctrine pushes back the start of the four-year time
limit to the last date of remedial work performed by Delta. We
disagree. Our Supreme Court has adopted the “continuing course
of treatment doctrine” with regard to malpractice by hospitals
and other health care providers. See Horton v. Carolina
Medicorp, Inc., 344 N.C. 133, 472 S.E.2d 778 (1996). In Horton,
our Supreme Court stated
[T]he doctrine tolls the running of the
statute for the period between the original
negligent act and the ensuing discovery and
correction of its consequences; the claim
still accrues at the time of the original
negligent act or omission.
To benefit from this doctrine, a
plaintiff must show both a continuous
relationship with a physician and subsequent
treatment from that physician. The
subsequent treatment must consist of an
affirmative act or an omission related to the
original act, omission, or failure which gave
rise to the claim.
We now affirm that the continuing course
of treatment doctrine, only as set forth
above, is the law in this jurisdiction.
Id. at 137, 472 S.E.2d at 781 (emphasis added). We note that the“continuing course of treatment doctrine” is not part of N.C.
Gen. Stat. § 1-15(c) (1996); rather, it is a construct of our
courts. Therefore, in light of the holding in Horton, which
narrowly defines the “continuing course of treatment doctrine,”
we elect not to expand the doctrine's breadth to encompass the
negligence arising from the providing of professional engineering
services between sophisticated corporate parties.
[8]Thus, we must determine whether the action is timely
under section 1-15(c), more specifically, whether the action was
commenced within “four years from the last act of the defendant
giving rise to the cause of action.” N.C. Gen. Stat. § 1-15(c)
(1996). Wysong presented expert testimony in support of their
negligence counterclaim. During cross examination, Wysong's
expert testified as follows:
Q. Are you saying that what Delta did wrong
was in connection with the design of the
system?
A. Wasn't necessarily the design of the
system, it was the way the system was
operated.
Q. Which is a consequence of the design of
the system, is that right?
A. Design and/or installation.
Q. And, the design and/or installation of
the system was complete as of the time of the
spill, is that right?
A. That is correct.
Q. Whatever it is that Delta did which was
a departure from the standard of care, it did
some time before the spill actually occurred,
is that correct?
A. That is correct.
According to Wysong's expert witness, no action after the spill
was a departure from the standard of care. Therefore, any acts
giving rise to the causes of action dismissed by the trial court
occurred before the spill. Because the spill was discovered on
15 July 1991 and Wysong's counterclaim was not filed until 27
September 1995, the dismissed counterclaims were not preserved
within the statutory period prescribed by section 1-15(c).
Accordingly, Delta's motion for directed verdict was properly
granted.
[9]We now turn to Delta's appeal. As we have held that the
contracts between Delta and Wysong bar Wysong's unjust enrichment
claim, we need not address Delta's first three assignments of
error. In its remaining assignment of error, Delta contends that
the trial court improperly denied its motions for directed
verdict, judgment notwithstanding the verdict, and a new trial.
Delta bases its assignment of error on the contention that the
jury's verdict is contrary to law and the greater weight of the
evidence. We disagree. Generally, the trier of fact, in thiscase the jury, must resolve issues of credibility and determine
the relative strength of competing evidence. See Upchurch v.
Upchurch, 128 N.C. App. 461, 495 S.E.2d 738, disc. review denied,
348 N.C. 291, 501 S.E.2d 925 (1998). Here, the trial court
submitted two issues to the jury regarding Delta's claim for
payment on account. Judge Lamm appropriately instructed the jury
that Delta bore the burden of proof for each element.
Accordingly, Delta must demonstrate by the greater weight of the
evidence 1) the fact that Wysong owed Delta money on account and
2) the amount of money owed by Wysong. While Delta's evidence
included bills for services rendered and not paid, Wysong
presented evidence that Delta's billing methods were unreliable
and inaccurate. Thus, the jury's verdict is not necessarily
contrary to law. It may simply reflect the jury's scepticism as
to the reliability or credibility of Delta's evidence or
witnesses. Therefore, the trial court properly denied Delta's
motions.
[10]However, “[o]ur Supreme Court has recognized that proof
of an injury to a party's legal rights entitles that party to
nominal damages at least.” Cole v. Sorie, 41 N.C. App. 485, 489,
255 S.E.2d 271, 274, disc. review denied, 298 N.C. 294, 259
S.E.2d 911 (1979). “The principle that the violation of a legal
right entitles a party to at least nominal damages has beenapplied to establish that '[i]n a suit for damages for breach of
contract, proof of the breach would entitle the plaintiff to
nominal damages at least.'” Cole v. Sorie, 41 N.C. App. at 490,
255 S.E.2d at 274 (quoting Bowen v. Bank, 209 N.C. 140, 144, 183
S.E. 266, 268 (1936)). In the instant case, the jury concluded
that Wysong breached its promise to pay for services rendered.
Therefore, Delta was entitled to recover at least nominal
damages. As the jury instructions did not include an instruction
that a finding in favor of the plaintiff on the first issue
required an award of at least nominal damages, such as one
dollar, we remand this case to the trial court and instruct it to
enter judgment awarding at least nominal damages.
In summary, the existence of valid contracts precludes
Wysong's action for unjust enrichment. The trial court's
determination that Wysong's motion to amend came “rather late” in
the case leads us to conclude that the motion was properly
denied. Furthermore, as the instant case is not an exception to
the general rule against enforcing contractual attorney's fees
clauses absent statutory authorization, we find no error in the
trial court's award of costs. The trial court properly
interpreted the contracts between the parties, and because the
instant case is not appropriate for the “common knowledge”
exception, Delta's motion for directed verdict was properly
granted. In addition, we choose not to expand the “continuing
course of treatment doctrine” to the providing of professional
engineering services. Thus, Wysong's negligence claims were
properly dismissed. Finally, because the jury determines matters
of weight and credibility afforded evidence and Wysong offered
evidence that Delta's billing methods were inaccurate, we find
that the jury's verdict is not contrary to the law as claimed by
Delta. Therefore, we reverse in part and affirm in part and
remand this case to the trial court for entry of judgment
consistent with this opinion.
Affirmed in part, reversed in part and remanded.
Chief Judge EAGLES and Judge TIMMONS-GOODSON concur.
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