Appeal by plaintiffs from judgment entered 6 December 1999 by
Judge Sanford L. Steelman, Jr. in Superior Court, Davidson County.
Heard in the Court of Appeals 27 March 2001.
Smith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith and
Seth R. Cohen, for plaintiff-appellants.
Burton & Sue, L.L.P., by Gary K. Sue, Walter K. Burton and
James D. Secor, III, for defendant-appellees.
McGEE, Judge.
Plaintiffs signed a fee construction contract with defendant
Castle Construction Company, Inc. (Castle) on 10 June 1996 to build
a house on plaintiffs' land. Defendant Ronald Jeffrey Cecil
(Cecil) signed the contract as president of Castle. The contract
provided that Cecil, as Castle's representative, would personally
oversee and provide general supervision in connection with the
construction project. Construction began immediately, and
plaintiffs paid defendants every month as billed. Then, in
December 1996, plaintiffs withheld several thousand dollars from
their payment because of obvious defects in the construction of the
house. Defendants demanded the remainder of the payment and, when
plaintiffs refused to pay, defendants ceased all work on the house.
Plaintiffs filed their complaint on 20 February 1997, alleging
that Castle had breached the fee construction contract through
numerous faults and defects in the construction, and alleging that
Castle had been negligent in constructing the house. Plaintiffs
also sought attorney's fees and costs as provided for in the fee
construction contract. Plaintiffs amended their complaint with
leave of the trial court on 18 August 1998, adding Cecil to their
claim of negligence.
At trial, plaintiffs sought to introduce evidence of plaintiff
Eva C. Lassiter's (Eva's) emotional distress arising from the
difficulties in constructing the house. The trial court denied
plaintiffs' request, holding that plaintiffs had not adequately
pled a claim for emotional distress.
At the close of plaintiffs' evidence, defendants moved for
directed verdicts on all claims. The trial court granteddefendants' motion for a directed verdict on the claim of
negligence against Castle, but denied defendants' motions on the
remaining claims of breach of contract against Castle and
negligence against Cecil.
During defendants' presentation of evidence, Cecil testified
that the fee construction contract was a contract between
plaintiffs and Castle, and that Cecil was involved only in his
capacity as president of Castle. Cecil acknowledged, however, that
he had been the construction superintendent for plaintiffs' house,
and that he also had done some work as a laborer for Castle's
framing subcontractor.
At the close of all the evidence, the jury returned verdicts
finding Castle liable for breach of contract and finding Cecil
liable for negligence. Upon defendants' motion, the trial court
granted judgment notwithstanding the verdict on the issue of
Cecil's negligence.
Plaintiffs waived their right to jury trial on the issue of
reasonable attorney's fees and expenses under the fee construction
contract. The trial court accordingly awarded plaintiffs
$22,794.75 in attorney's fees and $16,740.06 in expert witness fees
and deposition costs, as well as the filing fees and service fees
for all subpoenas issued by plaintiffs.
Plaintiffs appeal, assigning error to the trial court's (1)
exclusion of evidence of Eva's emotional distress, (2) grant of
judgment notwithstanding the verdict on the issue of Cecil's
negligence, and (3) award to plaintiffs of only $16,740.06 in
costs.
I.
[1]Plaintiffs assert that they were entitled to present
evidence of Eva's emotional distress as a component of damages both
for breach of contract and for negligence. However, neither
plaintiffs' original complaint, nor their amended complaint,
includes any mention of emotional distress or of personal injury of
any type.
In
McAllister v. Ha, 347 N.C. 638, 496 S.E.2d 577 (1998), our
Supreme Court indicated that a complaint alleging negligent
infliction of emotional distress must include an assertion of
injury due to emotional distress "'sufficient to give . . .
defendant notice of the nature and basis of plaintiffs' claim so as
to enable him to answer and prepare for trial.'"
Id. at 646, 496
S.E.2d at 583 (citation omitted). By failing to make any reference
to emotional distress in their claim for recovery for negligence,
plaintiffs have failed to give defendants sufficient notice of such
a claim for damages. We hold that the same standard applies with
respect to damages for emotional distress due to breach of
contract.
Plaintiffs suggest that defendants received adequate notice of
plaintiffs' claim for damages due to emotional distress, insofar as
plaintiffs' motion for leave to amend their initial complaint
includes an assertion that plaintiffs suffered "personal injuries"
as a result of Cecil's negligent acts. However, once the trial
court had entered its order allowing amendment, plaintiffs failed
to allege emotional distress or personal injury in their actual
amendment to the complaint. We conclude that, regardless ofwhether a bare assertion of "personal injuries" would be adequate
under
McAllister to support a claim for damages due to emotional
distress, plaintiffs' motion for leave to amend their complaint was
not a pleading and was therefore inadequate to provide the
requisite notice to defendants.
See Pyco Supply Co., Inc. v.
American Centennial Ins. Co., 321 N.C. 435, 442, 364 S.E.2d 380,
384 (1988) ("Under the notice theory of pleading, a statement of a
claim is adequate if it gives sufficient notice of the events or
transactions which produced the claim to enable the adverse party
to understand its nature and basis and to file a responsive
pleading.");
Jacobs v. Royal Ins. Co. of America, 128 N.C. App.
528, 530, 495 S.E.2d 185, 187 (1998) ("The motion to add . . . a
party was not part of the pleadings[.]"); N.C. Gen. Stat. § 1A-1,
Rule 7 (1999).
Because plaintiffs failed to plead a claim for damages for
emotional distress, the trial court did not err in excluding
plaintiffs' evidence of Eva's emotional distress.
II.
[2]Plaintiffs next assert that the trial court erred in
granting judgment notwithstanding the verdict on plaintiffs' claim
of negligence against Cecil.
[T]he standard of review for a judgment
notwithstanding the verdict is . . . whether,
upon examination of all the evidence in the
light most favorable to the nonmoving party,
and that party being given the benefit of
every reasonable inference drawn therefrom,
the evidence is sufficient to be submitted to
the jury.
Fulk v. Piedmont Music Ctr., 138 N.C. App. 425, 429, 531 S.E.2d476, 479 (2000) (citation omitted). We therefore consider whether
sufficient evidence was presented to the jury to find Cecil
negligent.
"Negligence is the failure to exercise proper care in the
performance of a legal duty which the defendant owed the plaintiff
under the circumstances surrounding them."
Moore v. Moore, 268
N.C. 110, 112, 150 S.E.2d 75, 77 (1966) (citation omitted).
Plaintiffs argue that Castle committed negligence through breach of
its legal duties under the fee construction contract. "Ordinarily,
a breach of contract does not give rise to a tort action by the
promisee against the promisor."
Ports Authority v. Roofing Co.,
294 N.C. 73, 81, 240 S.E.2d 345, 350 (1978). However, plaintiffs
assert that Castle's breach falls within one of the exceptions
described in
Ports Authority. See id. at 82, 240 S.E.2d at 350-51.
Moreover, plaintiffs contend that Cecil, as a corporate officer who
actively participated in Castle's tort, is liable for Castle's tort
under
Wilson v. McLeod Oil Co., 327 N.C. 491, 518, 398 S.E.2d 586,
600 (1990) ("A corporate officer can be held personally liable for
torts in which he actively participates.").
However, the trial court held that Castle's contractual duty
did
not create an action in tort under
Ports Authority when it
granted defendants' directed verdict on Castle's negligence
liability. Because plaintiffs do not assign error to that directed
verdict, the issue of Castle's negligence has not been challenged
on appeal.
See N.C.R. App. P. 10(a). It follows that, insofar as
the trial court established that Castle committed no tort, there isno corporate tort for which Cecil could be held liable under
Wilson.
In the alternative, plaintiffs assert that Cecil is personally
liable for his negligent acts as construction supervisor and as a
framing laborer, under the doctrine of
per se negligence for
violations of the North Carolina Building Code. "[T]he Code
imposes liability on any person who constructs, supervises
construction, or designs a building or alteration thereto, and
violates the Code such that the violation proximately causes injury
or damage."
Olympic Products Co. v. Roof Systems, Inc., 88 N.C.
App. 315, 329, 363 S.E.2d 367, 375,
disc. review denied, 321 N.C.
744, 366 S.E.2d 862, 366 S.E.2d 863 (1988). However, a violation
of the North Carolina Building Code constitutes negligence
per se
because the Code is a statute to promote the safety of others.
See
Lamm v. Bissette Realty, 327 N.C. 412, 415, 395 S.E.2d 112, 114
(1990). To benefit from negligence
per se for a violation of the
Code, plaintiffs must first demonstrate that they fall "within the
class intended to be protected by the statute[][.]"
Lynn v.
Overlook Development, 328 N.C. 689, 695, 403 S.E.2d 469, 472
(1991). We hold that, insofar as the Code is intended "for the
protection of the occupants of the building or structure, its
neighbors, and members of the public at large[,]" N.C. Gen. Stat.
§ 143-138(b) (1999), plaintiffs do not fall within that class.
The house was never finished and certified for occupancy, and
plaintiffs do not assert that they were damaged as members of thegeneral public. We conclude that, regardless of whether Cecil
could otherwise be held personally liable for violations of the
North Carolina Building Code under
Olympic Products, plaintiffs
were not owed a duty under the Code and therefore could not bring
such a claim.
Because plaintiffs failed to present evidence to the jury that
Cecil negligently breached a duty he owed, we find no error in the
trial court's grant of judgment notwithstanding the verdict on the
issue of Cecil's negligence.
III.
[3]Finally, plaintiffs assert that the trial court did not
adequately award plaintiffs their costs, as provided for in the fee
construction contract. The contract provides:
If either party to this Contract shall
seek to enforce this Contract, or any duties
or obligations arising out of this Contract,
against the other party to this Contract, by
legal or equitable proceedings, then the
prevailing party in such proceedings shall
receive, in addition to all other rights and
remedies to which such party is entitled, such
party's reasonable costs and expenses incurred
in such proceedings, including reasonable
attorney's fees.
During trial, plaintiffs waived their right to have the issue
of reasonable costs heard by the jury. At the close of the trial,
plaintiffs provided the trial court with a list of their litigation
expenses. In addition to attorney's fees, the trial court awarded
plaintiffs their deposition costs and expert witness fees, but
declined to compensate plaintiffs for the cost of photographs,
photocopies, several years of property taxes on the uncompleted
house, and other miscellaneous expenses totaling approximately$6,000. Plaintiffs assert that, because defendants did not
explicitly challenge their list of expenses, the trial court was
required under the fee construction contract to award plaintiffs
everything included on their list.
However, while defendants did not object to plaintiffs' list
of expenses, neither did they stipulate to it. Plaintiffs simply
presented the trial court with their list of expenses, divided into
categories. We hold that the trial court's finding of fact that
plaintiffs' deposition costs and expert witness fees were
plaintiffs' "reasonable costs and expenses" incurred in the
proceeding is supported by competent evidence.
See Fortune Ins.
Co. v. Owens, 351 N.C. 424, 428, 526 S.E.2d 463, 466 (2000) ("[O]n
appeal, the appellate courts are bound by the trial court's
findings [of fact] if competent evidence in the record supports
these findings."). We therefore find no error in the trial court's
award of costs to plaintiffs.
We affirm the 6 December 1999 judgment of the trial court.
Affirmed.
Judges GREENE and CAMPBELL concur.
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