Appeal by defendants from judgment entered 21 August 2000 by
Judge Stafford G. Bullock in Superior Court, Wake County. Heard in
the Court of Appeals 12 March 2002.
George B. Currin for plaintiff-appellee.
Warren, Perry & Anthony, P.L.L.C., by Michael K. Perry and
Fred B. Amos, II, for defendant-appellants.
McGEE, Judge.
TGC Development, Inc. (plaintiff) performs grading services.
Between 21 April 1998 and 2 November 1998, plaintiff entered intoan oral contract with R. A. Munns (Munns) to perform grading
services for Aegean Land Company, Rocky Mountain Enterprises, and
Key West Enterprises (collectively defendants). Plaintiff
performed the grading work under the direction of Munns, an agent
of defendants. Plaintiff did not have a general contracting
license when it performed the grading work for defendants. After
the completion of the work, plaintiff did not receive complete
payment from defendants. Plaintiff filed suit against defendants
seeking unpaid monies. The case was heard in a non-jury trial on
12 June 2000. The trial court entered judgment in favor of
plaintiff. Defendants appeal from this judgment.
I.
Defendants argue the trial court erred in determining that
Munns was a licensed general contractor hired by defendants to
employ and supervise subcontractors, including plaintiff, for the
construction of various residential projects. Defendants contend
Munns was merely a project manager and plaintiff contracted
directly with defendants; therefore, defendants contend plaintiff
should be considered a general contractor for the purposes of N.C.
Gen. Stat. § 87-1. We disagree.
In a non-jury trial, on appeal, the standard of review for
this Court "is whether there existed competent evidence to support
the trial court's findings of fact and whether the findings support
the conclusions of law and ensuing judgment. The trial judge acts
as both judge and jury and resolves any conflicts in the evidence."
G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 110, 362S.E.2d 807, 810 (1987) (citations omitted). In such case, the
trial court "is empowered to assign weight to the evidence
presented at trial as it deems appropriate."
Id. at 112, 362
S.E.2d at 811.
The trial court determined that Munns was a general contractor
and plaintiff was a subcontractor. Based on these findings, the
trial court concluded plaintiff was not prohibited from recovering
under N.C.G.S. § 87-1 because plaintiff was not an unlicensed
general contractor. The trial court found
4. All grading services performed by
Plaintiff for entities, either owned or
managed by Sanford Bailey, were under the
supervision and management of R. A. Munns.
. . .
12. R. A. Munns hired the Plaintiff on behalf
of the Defendants to provide grading services
for each residential subdivision owned by
defendants.
13. All pricing and estimated quantities for
grading services were provided to Plaintiff by
R. A. Munns.
. . .
17. R. A. Munns' responsibilities, on behalf
of Defendants, included, among other things,
review of preliminary engineering plans,
obtaining cost estimates from various
subcontractors, hiring subcontractors for the
project, preparation of construction schedules
for the various subcontractors, construction
supervision of subcontractors and review and
approval of subcontractor's invoices for
payment by the Defendants.
18. After the inception of the contracts,
R.A. Munns directed numerous change orders for
grading services performed by plaintiff at the
residential projects.
. . .
20. All construction activities, including
grading, were under the direct supervision and
management of R.A. Munns, a licensed general
contractor by the State of North Carolina.
. . .
22. With the exception of R. A. Munns,
Plaintiff had no direct contact with the
Defendants during its performance of grading
services for the construction of residential
lots.
In general, for the purposes of N.C.G.S. § 87-1, "the principal
characteristic distinguishing a general contractor from a sub-
contractor or other party contracting with the owner with respect
to a portion of the project, or a mere employee, is the degree of
control to be exercised by the contractor over the construction of
the entire project."
Helms v. Dawkins, 32 N.C. App. 453, 456, 232
S.E.2d 710, 712 (1977) (citations omitted),
overruled on other
grounds by Sample v. Morgan, 311 N.C. 717, 319 S.E.2d 607 (1984).
The record in this case shows plaintiff entered into an oral
contract with Munns to work on each of the grading projects, and
Munns supervised the work performed by plaintiff. The trial court
concluded Munns was a general contractor, and plaintiff was a
subcontractor. There is evidence in the record to support the
findings by the trial court, and these findings support the
conclusions of the trial court. We overrule this assignment of
error.
II.
Defendants next argue the trial court erred in entering
judgment for plaintiff because plaintiff was an unlicensed generalcontractor and was prohibited from recovering on its contract. We
disagree.
In general, an unlicensed general contractor may not recover
against an owner for breach of contract.
See Furniture Mart v.
Burns, 31 N.C. App. 626, 230 S.E.2d 609 (1976). However, as
discussed above, the trial court determined plaintiff was a
subcontractor on the residential projects in question. In
Vogel v.
Supply Co. and Supply Co. v. Developers, Inc., 277 N.C. 119, 131-
33, 177 S.E.2d 273, 280-82 (1970), our Supreme Court determined an
unlicensed subcontractor is not subject to the requirements of
N.C.G.S. § 87-1 and can recover on a breach of contract claim.
Therefore, we overrule this assignment of error.
III.
Defendants next argue the trial court erred in determining
that Munns supervised the work performed by plaintiff. However, as
discussed above in Section I, the trial court made several findings
of fact which indicate Munns was a supervisor over plaintiff's
work. As there is competent evidence in the record to support
these findings, these findings are binding on this Court. We
overrule this assignment of error.
Defendants' two remaining assignments of error are both
premised on a finding that plaintiff was an unlicensed general
contractor. Because we have determined plaintiff was a
subcontractor and did not need a general contractor's license to
perform the work required by the oral contract with Munns, we
overrule these assignments of error. We affirm the trial court's judgment for plaintiff.
Affirmed.
Judges GREENE and CAMPBELL concur.
Report per Rule 30(e).
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