Appeal by defendants from order filed 31 July 1998, from
judgment filed 2 September 1998, and from order filed 1 October
1998 by Judge Henry W. Hight, Jr. in Durham County Superior Court
in favor of plaintiffs Randy M. Henderson and wife, Kimberly Y.
Henderson. Heard in the Court of Appeals 9 May 2000.
Law Office of Robert B. Jervis, P.C., by Robert B. Jervis, and
Couch & Associates, by Finesse G. Couch, for plaintiff-
appellees Randy M. Henderson and Kimberly Y. Henderson.
Hayes Hofler & Associates, P.A., by R. Hayes Hofler, and
Maupin Taylor & Ellis, P.A., by John I. Mabe, Jr. and Kevin W.
Benedict, for defendant-appellants.
GREENE, Judge.
Roberts Construction Company, Inc. (Roberts Construction),
Bobby Roberts, and Bryant Roberts (collectively, Defendants) appeal
the trial court's denial of Defendants' motions for directed
verdict, a judgment filed 2 September 1998 in favor of Randy
Henderson and Kimberly Henderson (collectively, Plaintiffs), and an
order filed 1 October 1998 denying Defendants' motion for judgment
notwithstanding the verdict. Additionally, Defendants appeal the
trial court's denial of their motions for summary judgment;
however, these assignments of error were not set out in Defendants'
brief to this Court and are, therefore, deemed abandoned. N.C.R.App. P. 28(b)(5).
This case began as a consolidated action against Defendants
filed by approximately forty plaintiffs on 10 March 1997 for breach
of contract, breach of implied warranty, breach of express
warranty, fraud, and unfair and deceptive trade practices. The
allegations in the complaint arose out of the construction by
Roberts Construction of approximately thirty houses in the
Forestwood subdivision in Durham. This consolidated action came to
trial on 10 August 1998, and the parties consented to go forward
with Plaintiffs' claims. Consequently, only Plaintiffs' case was
tried on that date, and Plaintiffs' case is the sole case on appeal
before this Court.
Plaintiffs' Evidence
Plaintiffs presented evidence at trial that on 26 August 1996
they purchased a house located at 10 Rush Court in the Forestwood
subdivision from Roberts Construction. The house was constructedby Roberts Construction, and the purchase price was approximately$86,500.0
0. At the time of the construction, Bobby Roberts was the
sole owner of Roberts Construction and Bryant Roberts was an
employee of Roberts Construction. Plaintiffs testified they did
not notice any problems with the construction of the house prior to
moving into the house; however, Kimberly Henderson noticed cracks
in the house beginning in October of 1996.
At the time of Plaintiffs' purchase, Roberts Construction
provided Plaintiffs with an express warranty which guaranteed, in
pertinent part, that "[Plaintiffs' house] . . . is constructed in
substantial conformity with the plans and specifications . . .
which have been approved [for the construction of the house]."
This warranty required Plaintiffs to provide Roberts Construction
with written notice of any nonconformity "within one year from the
date of original conveyance of title to . . . [Plaintiffs] or the
date of initial occupancy, whichever first occurs."
Benjamin Wilson (Wilson) testified as an expert in the fields
of geo-technical engineering and construction materials. Wilson
testified regarding the method of constructing a "slab on grade"
house, which was the method used by Roberts Construction to build
the houses in the Forestwood subdivision. He stated the ground
would first be excavated by a backhoe, and the building inspector
would then approve the exposed soil for the pouring of concrete.
The concrete would be poured around the perimeter of the foundation
to the minimum width and thickness required under the North
Carolina and Durham Building Codes (the building code) and, after
the concrete had hardened, concrete block walls would beconstructed around the perimeter. A stone base would be placed on
top of the soil inside the perimeter and a vapor barrier, which is
a piece of plastic, would be placed on top of the stone base.
Concrete would then be poured and, if the plans called for the use
of a wire mesh, concrete would be spread over the wire mesh and the
wire mesh would be "pulled up into the concrete." Finally,
finished flooring, such as vinyl, carpet, or wood, would be placed
on top of the concrete slab. The building code requires a minimum
compressive strength for a concrete slab of 2500 pounds per square
inch (PSI) and minimum thickness of three-and-one-half inches.
Plaintiffs presented evidence the building plans for the
construction of their house required a four-inch stone base and a
four-inch concrete slab. Plaintiffs' plans also required the use
of a vapor barrier and wire mesh reinforcement.
Wilson testified he inspected Plaintiffs' house on 14 December
1996, 6 January 1998, and 3 August 1998. The 14 December 1996
inspection of the house revealed a three-to-four foot hairline
crack in the concrete floor beginning at the front door and
hairline cracks running horizontally and vertically "in the
foundation wall on the left end of the residence." Wilson stated
a hairline crack is "typically just . . . a crack that has not
opened up and [is] less than a 16th of an inch." Wilson testified
that when he revisited Plaintiffs' house in January of 1998, the
crack in the floor continued to the staircase that leads to the
second floor, and Wilson could not determine whether the crack
continued under the staircase. The crack had increased in widthfrom a hairline crack to a crack one-quarter to three-eighths of an
inch at its widest point. Further, an additional crack had
appeared in the foundation wall on the left side of the house.
Finally, Wilson testified that when he returned to the house on 3
August 1998, he observed numerous additional cracks on the interior
and exterior of the house, including a crack in the floor of the
washer/dryer area of the kitchen which proceeded between one-half
and one-third of the way across the kitchen floor, a crack
proceeding across a bedroom floor and under a wall into another
room, and a crack in the sheetrock on the front wall of the house.
Wilson stated cracks in sheetrock typically "are the last things to
appear when a house is undergoing structural problems."
Wilson also testified he took core samples from the floors of
Plaintiffs' house on 27 August 1997. Wilson obtained the core
samples by pulling back the carpet in the house and coring through
the concrete, leaving a hole in the concrete that is six inches in
diameter. Gravel was then dug out by hand, and the thickness of
the gravel was measured. Once the gravel had been removed, Wilson
then cored down through the soil with a hand auger and took a
"dynamic cone penetration test." This was done by driving a cone
into the soil to obtain a soil sample.
Wilson testified a core sample taken near the end of one of
the cracks in the floor indicated the concrete slab was only three
inches thick, which was less than the minimum thickness required by
Plaintiffs' plans and by the building code. There was also a one
and one-half inch air gap between the vapor barrier and the stone,and below the gap there was a two-inch layer of crushed rock mixed
with soil. Also, the soil below the rock was not compacted to the
standard required by the building code. Wilson testified based on
these tests that the compaction under the slab was not done in a
workmanlike manner, did not conform to the minimum requirements of
the building code, and created a "major structural deficiency." He
also testified the slab itself did not meet minimum building code
requirements and created a "major structural defect." Wilson
testified the concrete samples revealed an average compressive
strength of 940 PSI, which does not meet minimum building code
standards and created a "major structural deficiency." He also
stated the concrete did not contain the wire mesh required in
Plaintiffs' plans.
Plaintiffs also presented evidence regarding cracks in other
houses in the Forestwood subdivision constructed by Roberts
Construction between 1994 and 1996. Plaintiffs offered into
evidence photographs of these cracks, and Defendants objected to
the admission of the photographs on the ground their probative
value was substantially outweighed by undue prejudice under Rule
403 of the North Carolina Rules of Evidence. In response to
Defendants' objection, the trial court stated it had "performed the
balancing test under Rule 403" and Defendants' objection was
overruled. The photographs were authenticated through the
testimony of the photographer who had taken the photographs and
they were then admitted into evidence. Wilson subsequently
testified regarding the cracks in the other houses constructed byRoberts Construction, and he referred to the photographs of these
other houses to illustrate his testimony. Wilson testified he had
inspected between thirty-two and thirty-five houses in the
Forestwood subdivision other than Plaintiffs' house, and these
houses contained cracks similar to the cracks in Plaintiffs' house.
Also, these houses did not meet various building code standards for
average PSI, concrete thickness, rock thickness, and compaction
below the slab. During Wilson's testimony, Defendants objected to
his testimony "about cracks in other houses other than . . .
[Plaintiffs'] house" on the ground this testimony could not be used
as a basis for Wilson's opinion about Plaintiffs' house, and the
trial court overruled the objection.
Plaintiffs presented evidence that in order to repair the
cracking in their house, the concrete slab would have to be torn
out and reconstructed and foundation piers would have to be placed
under the house. Plaintiffs' evidence showed the cost of this
reconstruction would be approximately $58,436.00.
At the close of Plaintiffs' evidence, Defendants made the
following motions for directed verdict, which the trial court
denied: a motion for directed verdict on the issues of fraud and
unfair and deceptive trade practices; a motion for directed verdict
on the negligence claim against Bryant Roberts individually; a
motion for directed verdict on the fraud claim against Bobby
Roberts individually; a motion for directed verdict on the express
warranty claim; and a motion for directed verdict on the implied
warranty claim.
Defendants' Evidence
Bobby Roberts testified for Defendants that he is employed by
Roberts Construction and is the president and sole shareholder of
the company. He testified Roberts Construction had 90 to 100
employees at the time Plaintiffs' house was constructed. Roberts
Construction constructs slab on grade houses, and the slab upon
which Plaintiffs' house was built was constructed under the
supervision of Glennie McFarland (McFarland) and Fred Haithcock
(Haithcock), who are employees of Roberts Construction. All of the
labor on the houses was done by employees of Roberts Construction,
and subcontractors were not used to perform any of the work. Bobby
Roberts testified that under the building code, the concrete used
in constructing slab on grade houses may be reinforced with either
a wire mesh reinforcement or fiber reinforcement.
Bobby Roberts testified on cross-examination that Bryant
Roberts did not own any shares in Roberts Construction, and Bryant
Robert's general contractor's license was used to build Plaintiffs'
house. In his continuing testimony, he said he did not know at the
time of the construction that it was unlawful for Roberts
Construction to build using Bryant Robert's license; however, he
was aware at the time of trial that the use of Bryant Robert's
license was unlawful. He also testified that at the closing on
Plaintiffs' house he had signed documents representing he was the
general contractor for the house.
Bobby Roberts testified he signed an affidavit prior to trial
that stated: "I am president of Roberts Construction Company,Inc., and in conjunction with Glen McFarland, personally oversaw
and supervised the construction of all the 223 houses located in
the Forestwood subdivision." He testified at trial, however, that
he did not "personally supervise anybody" and that he "supervise[d]
the superintendents." He stated he did not have any recollection
of being at Plaintiffs' house while it was being constructed.
Bobby Roberts stated he did not believe the structural problems
with Plaintiffs' house were caused by leaving out the wire mesh
reinforcement when constructing the foundation. Further, Bernie
Ivey, a former building inspector for the City of Durham, testified
wire mesh reinforcement has not been required in slab on grade
foundations under the building code since approximately 1993.
Larry Hairston, a building inspector for the City of Durham,
testified he inspected Plaintiffs' house during its construction
and found the thickness of the gravel, vapor barrier, and
compactness of the soil met the requirements of the building code.
Haithcock testified concerning the daily activities at Roberts
Construction that all of the workers would meet with Bobby Roberts
at the company's shop in the morning, and Bobby Roberts would go
over with the workers what was planned for the day and what had
been done on the previous day. Haithcock stated the construction
was directly supervised by McFarland, and the workers were able to
remain in radio contact with Bobby Roberts throughout the day.
Haithcock stated on cross-examination he never witnessed Bryant
Roberts supervising work on a construction site for Roberts
Construction. McFarland testified he is the superintendent of construction
for Roberts Construction and, as part of his job, he is required to
"supervise the whole of the crew and make sure they [are]
performing their job properly." He stated part of the job of the
workers at Roberts Construction is to pour concrete slabs, and if
the soil underneath the slabs is not properly compacted then the
concrete will not be properly supported and might crack. He stated
problems with cracking in the concrete slabs did not arise until
the reinforcement used in the concrete was changed from wire mesh
reinforcement to fiber. McFarland testified the homes in the
Forestwood subdivision were built under Bryant Robert's license;
however, if McFarland had any problems at a job site, he would
contact Bobby Roberts, and he never saw Bryant Roberts supervising
any of the construction.
Thomas Caldwell (Caldwell), an expert in structural
engineering, testified he had inspected thirty-two houses in the
Forestwood subdivision, and approximately ten of the houses had
"either very significant or very severe structural damage to the
footings and slabs," while approximately twenty of the houses had
"a much lower degree of damage[,] [d]amage that would be fairly
typical for most houses, perhaps a few minor cracks, lots of
cracked stucco, but no signs of significant settlement or
significant structural damage." Caldwell testified he categorized
the damage to Plaintiffs' house as "slight foundation damage,"
which means the house had "small foundation wall cracks, small slab
cracks, minor or no footing settlement found or suspected, [and]minor repairs recommended." In Caldwell's opinion, the cost of
making the necessary repairs to Plaintiffs' house would be
approximately $2,000.00.
At the close of all of the evidence, Defendants made motions
for directed verdicts on the following issues: fraud and unfair
and deceptive trade practices as to all Defendants; all individual
claims against Bryant Roberts; all individual claims against Bobby
Roberts; and all claims of breach of express and implied warranty.
The trial court denied these motions.
Jury Verdict
Subsequent to its deliberations, the jury returned the
following verdict: Roberts Construction breached its express
warranty and implied warranty of habitability, causing Plaintiffs
$60,236.00 in damage; Bryant Roberts was negligent, causing
Plaintiffs $60,236.00 in damage; Roberts Construction committed
fraud, causing Plaintiffs $60,236.00 in damage; and Bobby Roberts
did not commit fraud. The jury also made the following relevant
findings regarding the conduct of Bobby Roberts: (1) Bobby
Roberts "[e]ngage[d] in the profession of general contractor with
respect to [Plaintiffs' house] without having obtained a general
contractor's license as required by law"; (2) Bobby Roberts
"[c]onceal[ed] material facts relevant to [Plaintiffs' house] from
. . . Plaintiffs which he knew at the time of purchase that . . .
Plaintiffs could not discover in the exercise of due diligence";
and (3) Bobby Roberts "[f]alsely represent[ed] to . . . Plaintiffs
that [Plaintiffs' house] had been constructed in substantialconformity with plans and specifications approved [for the house]."
The trial court then found, based on the jury's verdict, that
Roberts Construction and Bobby Roberts had engaged in unfair and
deceptive trade practices pursuant to N.C. Gen. Stat. § 75-1.1.
The trial court, therefore, entered a judgment for treble damages
against Roberts Construction and Bobby Roberts in the amount of
$180,708.00, plus $39,490.00 in attorney's fees pursuant to N.C.
Gen. Stat. § 75-16.1. The trial court also entered judgment
against Bryant Roberts in the amount of $60,236.00 based on the
jury's finding of negligence.
(See footnote 1)
_________________________
The issues are whether: (I) the probative value of
photographs of cracks in the floors and foundations of other houses
constructed by Roberts Construction was substantially outweighed by
unfair prejudice under Rule 403 of the North Carolina Rules of
Evidence; (II) the record contains substantial evidence Roberts
Construction had actual knowledge of structural defects in
Plaintiffs' house at the time Plaintiffs purchased the house; (III)
the record supports entry of judgment for unfair and deceptive
trade practices against Roberts Construction and Bobby Roberts;
(IV) the record contains substantial evidence Bryant Roberts was
the general contractor for the construction of Plaintiffs' house;
(V) the record contains substantial evidence Plaintiffs provided
Roberts Construction with written notice of its alleged breach ofthe parties' express warranty; and (VI) the record contains
substantial evidence Plaintiffs' house was not constructed in a
workmanlike quality.
I
Admission of Evidence
[1]Defendants argue photographs of cracks in the foundations
and floors of other houses constructed by Roberts Construction in
the Forestwood subdivision should not have been admitted into
evidence because the probative value of the photographs was
outweighed by unfair prejudice under Rule 403 of the North Carolina
Rules of Evidence.
(See footnote 2)
We disagree.
Rule 403 provides, in pertinent part, that relevant evidence
"may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice." N.C.G.S. § 8C-1, Rule 403
(1999). Whether evidence should be excluded under Rule 403 is in
the sound discretion of the trial court.
State v. Mason, 315 N.C.724, 731, 340 S.E.2d 430, 435 (1986).
In this case, Defendants argue "the cumulative effect of . . .
[P]laintiffs' expansive use of [the photographs] [] outweighed the
probative value of the evidence." The evidence shows the
photographs of other houses were admitted into evidence, and Wilson
used the photographs to illustrate his testimony regarding cracking
in the floors and foundations of other houses constructed by
Roberts Construction. The record does not show Plaintiffs' use of
the photographs was so "expansive" as to be unfairly prejudicial,
and the trial court did not abuse its discretion by finding the
probative value of the evidence was not substantially outweighed by
any unfair prejudice to Defendants.
See State v. Burrus, 344 N.C.
79, 90, 472 S.E.2d 867, 875 (1996) ("trial court may be reversed
for an abuse of discretion only upon a showing that its ruling
could not have been the result of a reasoned decision").
II
Fraud
[2]Defendants argue the record does not contain any evidence
Roberts Construction had actual knowledge of structural defects in
Plaintiffs' house at the time Plaintiffs purchased the house, and,
therefore, a directed verdict should have been granted in favor of
Roberts Construction on Plaintiffs' fraud claim. We disagree.
A defendant is entitled to a directed verdict when, viewing
the evidence in the light most favorable to the plaintiff, there is
no substantial evidence to support the plaintiff's claim.
Cobb v.
Reitter, 105 N.C. App. 218, 220-21, 412 S.E.2d 110, 111 (1992). "Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
State v.
Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990).
The elements of fraud are: "(1) False representation or
concealment of a material fact, (2) reasonably calculated to
deceive, (3) made with intent to deceive, (4) which does in fact
deceive, (5) resulting in damage to the injured party."
Brickell
v. Collins, 44 N.C. App. 707, 710, 262 S.E.2d 387, 389,
disc.
review denied, 300 N.C. 194, 269 S.E.2d 622 (1980). Further, the
false representation must relate to facts of which the defendant
had actual knowledge,
id. at 711-712, 262 S.E.2d at 390, and actual
knowledge may be shown by circumstantial evidence admitted pursuant
to Rule 404(b), N.C.G.S. § 8C-1, Rule 404(b) (evidence of other
acts admissible to show knowledge);
State v. Sisk, 123 N.C. App.
361, 368, 473 S.E.2d 348, 353 (1996) (evidence of other forged
checks cashed by defendant or her boyfriend admissible under Rule
404(b) to show defendant's knowledge that the check in question was
forged),
aff'd in part and review dismissed in part, 345 N.C. 749,
483 S.E.2d 440 (1997);
State v. Gregory, 32 N.C. App. 762, 764, 233
S.E.2d 623, 624 (evidence defendant had on a previous occasion
received stolen goods admissible under Rule 404(b) to show
defendant knew goods in question were stolen),
disc. review denied,
292 N.C. 732, 236 S.E.2d 701 (1977).
In this case, Plaintiffs presented evidence regarding cracks
in approximately thirty other houses constructed by Roberts
Construction between 1994 and 1996. These other houses wereconstructed using the same slab on grade method used by Roberts
Construction to construct Plaintiffs' house, and Wilson testified
these houses contained cracks in their foundations and floors that
were similar to the cracks found in Plaintiffs' house.
Additionally, Wilson testified that, similar to Plaintiffs' house,
these other houses did not meet various building code standards for
average PSI, concrete thickness, and compaction below the slab.
Based on this evidence of cracks in the floors and foundations of
these other houses, a reasonable person could find Roberts
Construction had actual knowledge of structural defects in
Plaintiffs' house at the time Plaintiffs purchased their house.
(See footnote 3)
Accordingly, the trial court properly denied Defendants' motion for
a directed verdict on the issue of fraud.
(See footnote 4)
III
Unfair and Deceptive Trade Practices
[3]Defendants argue the trial court erred by entering
judgment against Roberts Construction and Bobby Roberts for unfairand deceptive trade practices pursuant to N.C. Gen. Stat. § 75-1.1.
We disagree.
Roberts Construction
"Proof of fraud . . . necessarily constitute[s] a violation of
the prohibition against unfair and deceptive acts" under section
75-1.1.
Hardy v. Toler, 288 N.C. 303, 309, 218 S.E.2d 342, 346
(1975).
In this case, the trial court based its conclusion of law that
Roberts Construction had engaged in unfair and deceptive trade
practices, in pertinent part, on the judgment for fraud entered
against Roberts Construction. Judgment for violation of section
75-1.1 was, therefore, properly entered against Roberts
Construction.
Bobby Roberts
In this case, the trial court based its conclusion of law
Bobby Roberts had engaged in unfair and deceptive trade practices
on the following three findings by the jury: (1) Bobby Roberts
"[e]ngage[d] in the profession of general contractor with respect
to [Plaintiffs' house] without having obtained a general
contractor's license as required by law"; (2) Bobby Roberts
"[c]onceal[ed] material facts relevant to [Plaintiffs' house] from
. . . Plaintiffs which he knew at the time of purchase that . . .
Plaintiffs could not discover in the exercise of due diligence";
and (3) Bobby Roberts "[f]alsely represent[ed] to . . . Plaintiffs
that [Plaintiffs' house] had been constructed in substantial
conformity with plans and specifications approved [for the house]." Defendants argue in their brief to this Cou
rt that a judgment
for unfair and deceptive trade practices may not be based upon
Bobby Robert's "lack of an appropriate general contractor's
license"; however, Defendants do not argue in their brief to this
Court that the other two grounds cited by the trial court are
insufficient to support a judgment for unfair and deceptive trade
practices. The sufficiency of these other two grounds, therefore,
is not properly before this Court.
See N.C.R. App. P. 28(b)(5).
Accordingly, assuming, without deciding, that the failure of Bobby
Roberts to obtain a general contractor's license is insufficient to
support a claim for unfair and deceptive trade practices, the
unfair and deceptive trade practices judgment is nevertheless
supported by these other two grounds.
See Bailey v. Gooding, 60
N.C. App. 459, 463, 299 S.E.2d 267, 270 (judgment based on more
than one ground presumed valid when one ground is incorrect but
other grounds are correct),
disc. review denied, 308 N.C. 675, 304
S.E.2d 753 (1983).
IV
Negligence
[4]The elements of a cause of action for negligence are the
existence of a legal duty, breach of that duty, and injury
proximately resulting from the breach.
Hunt v. N.C. Depart. of
Labor, 348 N.C. 192, 195, 499 S.E.2d 747, 749 (1998).
The single issue raised by Defendants regarding Bryant
Robert's negligence is whether the record contains substantial
evidence Bryant Roberts was the general contractor for theconstruction of Plaintiffs' house.
(See footnote 5)
Bobby Roberts and McFarland
testified that Bryant Robert's general contractor's licence was
used to build Plaintiffs' house. A reasonable person could find
based on this evidence that Bryant Roberts was the general
contractor for Plaintiffs' house.
See N.C.G.S. § 87-1 (1999).
Accordingly, the trial court properly denied Defendants' motion for
directed verdict on the issue of Bryant Roberts' negligence.
V
Express Warranty
[5]Defendants argue Plaintiffs did not give written notice of
the alleged breach of express warranty as required by the terms of
the warranty and, therefore, Roberts Construction was entitled to
a directed verdict on the issue of breach of express warranty.
Plaintiffs contend their complaint filed in this case provided
Roberts Construction with written notice.
An express warranty is contractual in nature,
Wyatt v.
Equipment Co., 253 N.C. 355, 358, 117 S.E.2d 21, 24 (1960), and its
terms are therefore construed in accordance with their plain
meaning,
Brown v. Scism, 50 N.C. App. 619, 623, 274 S.E.2d 897,
899,
disc. review denied, 302 N.C. 396, 276 S.E.2d 919 (1981).
In this case, the breach of express warranty alleged byPlaintiffs is that their house was not "constructed in
substantial
conformity with the plans and specifications . . . which have been
approved [for the house]." The terms of the express warranty state
Plaintiffs must give written notice of such alleged breach to
Roberts Construction "within one year from the date of original
conveyance of title." Assuming, without deciding, that service of
a complaint is sufficient to give written notice under the terms of
the parties' express warranty, Plaintiffs' complaint does not
allege Roberts Construction failed to construct Plaintiffs' house
"in substantial conformity with the plans and specifications . . .
which have been approved [for the house]."
(See footnote 6)
The complaint,
therefore, did not provide Roberts Construction with notice of this
alleged breach. Accordingly, because the record does not contain
any evidence Plaintiffs provided Roberts Construction with written
notice of the alleged breach, Roberts Construction was entitled to
a directed verdict on the issue of breach of express warranty.
VI
Implied Warranty of Habitability
[6]Defendants argue there is no evidence in the record that
the existence of cracks in Plaintiffs' house created a breach of
the implied warranty of habitability. We disagree.
The doctrine of implied warranty of habitability requires that
a dwelling and all of its fixtures be "sufficiently free from major
structural defects, and . . . constructed in a workmanlike manner,so as to meet the standard of workmanlike quality then prevaili
ng
at the time and place of construction."
Hartley v. Ballou, 286
N.C. 51, 62, 209 S.E.2d 776, 783 (1974). The test for breach of
implied warranty of habitability is "whether there is a failure to
meet the prevailing standard of workmanlike quality" in the
construction of the house, and whether a defendant has breached the
implied warranty of habitability is a question of fact to be
determined by the jury.
Gaito v. Auman, 313 N.C. 243, 252, 327
S.E.2d 870, 877 (1985).
In this case, Wilson testified regarding numerous cracks in
the interior and exterior of Plaintiffs' house, including cracks in
the floor, foundation wall, and sheetrock. Wilson stated
Plaintiffs' foundation did not conform to the minimum requirements
of the building code and plans, and the construction of the
foundation created a "major structural defect." Based on this
evidence, a reasonable juror could find Plaintiffs' house was not
free from major structural defects, and the foundation was not
constructed in a workmanlike manner. Accordingly, the trial court
properly denied Defendants' motion for a directed verdict on the
issue of breach of implied warranty of habitability.
Defendants have raised other arguments in their brief to this
Court. We either reject these arguments as being without merit or
refuse to address them because they are in violation of Rule
28(b)(5) of the North Carolina Rules of Appellate Procedure.
See
N.C.R. App. P. 28(b)(5).
Reversed in part and affirmed in part.
Judges TIMMONS-GOODSON and HORTON concur.
Footnote: 1