1. Contracts--breach--failure to prove damages--failure to prove contract breached--
involuntary dismissal proper
The trial court did not err in a breach of contract action by converting defendant's
N.C.G.S. § 1A-1, Rule 50(a) motion for a directed verdict into a N.C.G.S. § 1A-1, Rule 41(b)
motion for involuntary dismissal and by granting this motion, because: (1) plaintiff failed to
prove the damages suffered in the breach of contract claim; and (2) plaintiff failed to prove the
contract was breached.
2. Contracts--breach--deposition and exhibits--involuntary dismissal proper
The trial court did not err in a breach of contract action when it granted an involuntary
dismissal even though plaintiff contends the trial court failed to consider all of plaintiff's
deposition and exhibits, because: (1) the trial court considered this evidence but did not peruse
the material further after plaintiff could not point to places in the deposition or exhibits which
would prove damages attributable to defendant; and (2) the trial court based its dismissal on
plaintiff's failure to make out a prima facie case as well as the fact that the trial court believed
that plaintiff breached the contract.
Johnson Tanner Cooke Younce & Moseley, by J. Sam Johnson, Jr.,
for plaintiff-appellant.
Forman Rossabi Black Marth Iddings & Albright, P.A., by T.
Keith Black, for defendant-appellee.
WYNN, Judge.
A Rule 41(b) motion “not only tests the sufficiency of
plaintiff's proof to show a right to relief, but also provides a
procedure whereby the judge may weigh the evidence, determine the
facts, and render judgment on the merits against the plaintiff.”
McKnight v. Cagle, 76 N.C. App. 59, 65, 331 S.E.2d 707, 711, cert.denied, 314 N.C. 541, 335 S.E.2d 20 (1985). The plaintiff in
this
case argues that the dismissal of its case under Rule 41(b) was
improper because it presented sufficient proof to support its
breach of contract claim. Because the transcript in this matter
supports the trial court's conclusions that the plaintiff offered
insufficient proof of breach and damages, we uphold the trial
court's order of dismissal.
This appeal arises out of a construction contract in which the
defendant Patrick McMillan agreed to undertake a $26,879 project
for the Greensboro Masonic Temple Company, Inc. The parties
disagree as to why McMillan failed to finish the project--the
Greensboro Masonic Temple contends that McMillan abandoned the job;
but McMillan says that the Greensboro Masonic Temple breached the
contract by failing to pay him.
Greensboro Masonic Temple ultimately hired other contractors
to complete the construction project, paying a total of $45,953.40.
By this action, Greensboro Masonic Temple seeks to recover
$19,074.40 from McMillan--the difference between the amount it
spent to complete the job and the amount contracted with McMillan.
At a bench trial, McMillan moved for a directed verdict under
N.C.R. Civ. P. 50(a) at the close of the Greensboro Masonic
Temple's evidence on the grounds that Greensboro Masonic Temple
failed to offer evidence supporting its claim for damages. The
trial court granted this motion after allowing the Greensboro
Masonic Temple an opportunity to point out any evidence which might
show damages attributable to McMillan.
[1]Greensboro Masonic Temple then moved for a new trial. Thetrial court denied this motion, but amended its judgm
ent to
designate that it treated McMillan's motion under Rule 50(a) as a
motion for involuntary dismissal under Rule 41(b). We acknowledge
that the trial court undertook that amending action because the
proper motion to dismiss a case during a bench trial is a motion
for involuntary dismissal under Rule 41(b), not a motion for
directed verdict under Rule 50(a). And, when “a motion to dismiss
under Rule 41(b) is incorrectly designated as one for a directed
verdict, it may be treated as a motion for involuntary dismissal.”
Neasham v. Day, 34 N.C. App. 53, 54-55, 237 S.E.2d 287, 288 (1977).
We, therefore, consider Greensboro Masonic Temple's appeal to be
from the trial court's order of involuntary dismissal under Rule
41(b).
When considering a Rule 41(b) motion, the trial court does not
need to evaluate the evidence in the light most favorable to the
plaintiff, as would be required by a ruling on a motion for
directed verdict. See Dealers Specialities, Inc. v. Neighborhood
Housing Services, Inc., 305 N.C. 633, 638, 291 S.E.2d 137, 140
(1982). See also McKnight v. Cagle, 76 N.C. App. 59, 65, 331
S.E.2d 707, 711 (1985).
(See footnote 1)
A dismissal under Rule 41(b) should be
granted when the plaintiff has shown no right to relief or if thetrial court determines that the defendant should otherwise prevail
as a matter of law. See Ayden Tractors v. Gaskins, 61 N.C. App.
654, 660, 301 S.E.2d 523, 527, disc. review denied, 309 N.C. 319,
307 S.E.2d 162 (1983).
Rule 41(b) provides that if the trial court grants an
involuntary dismissal it shall make findings of fact and separate
conclusions of law. Failure to make findings of fact is reversible
error and requires a new trial. See Hill v. Lassiter, 135 N.C.
App. 515, 520 S.E.2d 797 (1999); Mashburn v. First Investors Corp.,
102 N.C. App. 560, 402 S.E.2d 860 (1991); Young v. Kuehne Chemical
Co.,Inc., 53 N.C. App. 806, 281 S.E.2d 742, rev. denied, 304 N.C.
590, 289 S.E.2d 566 (1981). Such findings are intended to aid this
Court by providing us with a clear understanding of the basis of
the trial court's decision, and to make clear what was decided for
purposes of res judicata and estoppel. See Helms v. Rea, 282 N.C.
610, 619, 194 S.E.2d 1, 7 (1973).
While this Court has not explicitly held that there are any
exceptions to this requirement, we held in Hill v. Lassiter, 135
N.C. App. 515, 520 S.E.2d 797 (1999) and Dept. of Transportation v.
Overton, 111 N.C. App. 857, 433 S.E.2d 471 disc. review allowed,
335 N.C. 237, 439 S.E.2d 144 (1993), and disc. review improvidently
granted, 336 N.C. 598, 444 S.E.2d 448 (1994), that the trial
court's basis for its decision could be found in the transcript.
In those cases, the transcripts did not reveal an adequate basis
for the trial court's grant of involuntary dismissal. But in thecase at bar, the transcript affords us with a clear understanding
of the trial court's basis for granting an involuntary dismissal--
the Greensboro Masonic Temple failed to prove the damages suffered
in the breach of contract claim. The transcript further shows that
the Greensboro Masonic Temple failed to prove that the contract was
breached. See, e.g., Iron Steamer, Ltd. v. Trinity Restaurant,
Inc., 110 N.C. App. 843, 431 S.E.2d 767 (1993).
The transcript, in this case, shows that during the bench
trial there had been no testimony as to the costs associated with
things that had to be redone, corrected and finished under the
contract. Moreover, Greensboro Masonic Temple submitted only the
costs associated with finishing the job. Significantly, Greensboro
Masonic Temple presented no evidence of its cost to repair the
damages that they contend were caused by McMillan. Indeed, during
the bench trial, the trial court agreed with McMillan that
Greensboro Masonic Temple could not specify which of its costs were
attributable to the damages caused by McMillan. After providing
what they had to pay to finish the project, Greensboro Masonic
Temple, when addressing the issue of damages stated: “Judge, you
can sort of figure it out on your own.”
Further, McMillan testified to being locked out of the
facility before completion of the project. At the hearing
regarding Greensboro Masonic Temple's motion for a new trial, the
trial judge stated:
I think [Greensboro Masonic Temple] would be well-advised
to let this one go Mr. Johnson. Those two men that
testified obviously were more interested in running this
project than the person they hired to run it. As far as
I'm concerned, they breached the contract when theystarted interfering with him.
The trial judge also commented,“had this case gone to decision, I
would have ruled against [Greensboro Masonic Temple] anyway,
because I thought they had breached the contract based upon the
evidence I heard here and now.”
Either of these two grounds--failure to properly attribute
damages to the defendant or the breach of contract on the part of
the Greensboro Masonic Temple--is a finding of fact that would
support the trial court's order of involuntary dismissal under Rule
41(b). While the better practice would have been for the trial
court to make its findings of fact and conclusions of law in the
judgment, we find that the trial court's motivation was clear
enough for appellate review. Further, we hold that based on the
trial court's findings and conclusions, involuntary dismissal was
proper.
[2]Greensboro Masonic Temple also argues that the trial court
erred when it granted involuntary dismissal because it had not
considered all of Greensboro Masonic Temple's evidence, namely, a
deposition and its exhibits. We find fault with Greensboro
Masonic Temple's argument on two grounds.
First, the trial court did not completely ignore the proffered
deposition and exhibits, as is evidenced both by the appellant's
brief and the transcript. While it appears that he did not read
the documents in their entirety, the trial court specifically asked
Greensboro Masonic Temple to point to places in the deposition or
exhibits which would prove damages attributable to McMillan.
Greensboro Masonic Temple failed to do so, leaving the trial courtwith no reason to peruse the material further. During the hearing
regarding Greensboro Masonic Temple's motion for a new trial, the
trial court stated the following as its reasoning for granting the
motion to dismiss and denying the motion for a new trial:
[T]he question of what's in the deposition is
not as important to me as what's not in the
deposition . . . [T]here wasn't evidence of
what it cost [Greensboro Masonic Temple] to
repair the damages that they contend were
caused by the defendant. You had lots of
information about what they had to pay to
finish the project, but not any specific
information about what it costs to do the
work, and that's why I granted the motion, and
I'm satisfied...
Second, the trial court did not base its dismissal solely on
Greensboro Masonic Temple's failure to make out a prima facie case;
rather, it explicitly stated during the hearing for a new trial
that it believed the Greensboro Masonic Temple breached the
contract. This independent ground for dismissing the case made the
trial court's failure to read the transcript in its entirety at
most harmless error. Since the trial court made the finding that
Greensboro Masonic Temple breached the agreement, no amount of
proof of damages by Greensboro Masonic Temple would have allowed it
to recover from McMillan. See Millis Constr. Co. v. Fairfield
Sapphire Valley, Inc., 86 N.C. App. 506, 512, 358 S.E.2d 566, 570
(1987) (holding that if either party commits a material breach of
contract, the other party should be excused from the obligation to
further perform).
The judgment of the trial court is,
Affirmed. Judges McGEE and JOHN concur.
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