An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-944
                                          &nb sp; 
Filed: 5 August 2003



v .                             Buncombe County
                                No. 00-CVS-000979


    Appeal by plaintiffs from order entered 5 March 2002 by Judge Zoro J. Guice, Jr., in Buncombe County Superior Court. Heard in the Court of Appeals 14 May 2003.

    Westall, Gray, Connolly & Davis, P.A., by Jack W. Westall, Jr., for plaintiff-appellants.

    William L. Gardo, II, for defendant-appellee.

    MARTIN, Judge.

    Plaintiffs Lawrence and Alisa Sloop appeal the entry of an order denying their motion for a new trial under Rules 59 and 60 of the Rules of Civil Procedure following the entry of judgment on a jury verdict in favor of defendant Chestnut Hill Construction Service, Inc.
    Plaintiffs filed this action seeking damages from defendant upon claims for breach of contract and unfair and deceptive practices in violation of G.S. § 75-1.1. In the complaint, plaintiffs alleged they met with defendant in July 1999 to discuss the possibility that defendant would construct a residence forthem. Plaintiffs alleged, and offered evidence tending to show, that they presented defendant with house plans and specifications, and defendant represented it could construct the house for $160,000. Defendant submitted to plaintiff a “Description of Materials” outlining the materials necessary for construction. The parties executed a building contract on 12 July 1999 for defendant to build the house for $160,000 with all construction to be completed by 1 February 2000. Plaintiffs received a construction loan from the North Carolina State Employees' Credit Union (“Credit Union”).
    Following the July closing, plaintiffs paid defendant $10,000 to commence construction. Plaintiffs alleged that defendant did not begin construction until September 1999; that defendant issued plaintiffs several invoices, which they were forced to pay, for additional items not contemplated by the contract or the Description of Materials; that defendant overdrew the construction loan by taking payments for substantially more work than had been completed; and that defendant told plaintiffs that the cost of construction would be between $218,406 and $242,803. Plaintiffs alleged defendant breached its contract by failing to complete construction in a timely manner, by failing to pay suppliers and laborers, and by refusing to construct the house according to contract terms. Plaintiffs additionally asserted that defendant engaged in unfair and deceptive practices by coercing them to make payments substantially in excess of the contract price.
    Defendant offered evidence through its president, JosephCarney, that the extra costs incurred during construction were due to changes made to the building plans after execution of the contract. The changes plaintiffs requested included moving the location of the house further down a hill on the property, thereby necessitating construction of a basement that would alter the square footage of the house from the originally agreed 2,000 to 3,700, as well as installation of a well and septic tank, and clearing and grading which plaintiffs were to have completed prior to commencement of construction, but had not done. Carney testified that such changes made by plaintiffs increased the cost of construction, and that plaintiffs fired defendant when the parties could not agree on the extra costs.

    Plaintiffs' sole argument on appeal is directed to the trial court's denial of their amended and restated motion for a new trial on grounds Carney offered false testimony at trial. Plaintiffs argue the alleged perjury entitled them to a new trial under Rules 59(a) and 60(b). Under Rule 59, a trial court may grant a new trial for, among other things, (1) “[a]ny irregularity by which any party was prevented from having a fair trial;” (2) “[m]isconduct of the jury or prevailing party;” (3) “[a]ccident or surprise which ordinary prudence could not have guarded against;” and (4) “[a]ny other reason heretofore recognized as grounds for new trial.” N.C. Gen. Stat. § 1A-1, Rule 59(a) (1); (2); (3); (9) (2003). Under Rule 60(b), a party may receive a new trial for “[f]raud (whether heretofore denominated intrinsic or extrinsic), misrepresentation,or other misconduct of an adverse party,” and “[a]ny other reason justifying relief from the operation of the judgment.” N.C. Gen. Stat. § 1A-1, Rule 60(b) (3); (6) (2003).
    “The rule is well-settled that a motion for a new trial under Rule 59 [not asserting errors of law] 'is addressed to the sound discretion of the trial judge,' whose ruling 'is not reviewable on appeal, absent manifest abuse of discretion.'” Hutelmyer v. Cox, 133 N.C. App. 364, 373, 514 S.E.2d 554, 561 (citation omitted), disc. review denied, 351 N.C. 104, 541 S.E.2d 146 (1999). Similarly, “[i]n determining whether to grant relief under Rule 60(b)[], the trial court has sound discretion which will be disturbed only upon a showing that the trial court abused its discretion.” Briley v. Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 655 (1998).
    In the present case, plaintiffs assert that three aspects of Carney's testimony at trial were false: (1) testimony regarding the suspension of his contractor's license; (2) testimony regarding the engineering design for the house's foundation; and (3) testimony regarding his relationship with the Credit Union.
    As to the first issue, plaintiffs introduced at trial a Consent Order entered 2 December 1999 between defendant and the North Carolina Licensing Board for General Contractors (“Board”) wherein defendant agreed to a 90-day suspension of its contractor's license, which license could be conditionally restored after 30 days, provided defendant complied with applicable laws for the six months following the return of its license. When presented withthe Consent Order at trial, Carney testified that he had agreed during a telephone conversation with a Licensing Board attorney to a 30-day active suspension with a six-month probation period, and that while defendant would not be permitted to take on any new contracts during the suspension, it could continue work on current contracts as usual. Carney further testified that defendant was never without a contractor's license at any time relevant to plaintiffs' case.
    As an exhibit to their amended and restated motion for a new trial, plaintiffs attached a letter from attorney Denise Stanford, counsel for the Board, stating that during the 30-day active suspension of defendant's license, defendant “was prohibited from undertaking to bid upon, to construct, or undertaking to superintend or manage or enter into any contracts providing for the construction of any building . . . grading or any improvement of structure, where the cost of the undertaking was $30,000.00 or more.” The letter also referenced the fact that defendant's license was suspended from 2 December 1999 through 1 January 2000, the license being conditionally restored on 2 January 2000. Stanford's letter thus establishes that Carney misrepresented to the jury that defendant was permitted by the Board to continue work as usual on plaintiffs' home during the active suspension of its license, and that essentially, the suspension had no effect on defendant's ability to perform construction on plaintiffs' home at any time.
    We agree with plaintiffs that Carney's misrepresentation,regardless of intent, was sufficient grounds to justify relief in the form of a new trial. Even with due regard to our strict standard of review, the record establishes that Carney's misrepresentations likely prejudiced the result of the trial, and accordingly, we believe the trial court abused its discretion in failing to grant plaintiffs a new trial. Carney's statements that defendant was not in violation of the Board's suspension when it performed construction on plaintiffs' house in December 1999 and that it was never without a valid contractor's license had a direct bearing on plaintiffs' breach of contract claim, which was, in part, based on defendant's failure to “complete the house according to the terms and conditions of the Building Contract.” The building contract provided that “[Defendant] shall conform to all laws, ordinances, rules and regulations now in force in the city and or county in which the work is being done and shall obtain all permits, licenses and consents.” Plaintiffs presented evidence in support of their amended and restated motion establishing that defendant failed to comply with all statutory licensing requirements for general contractors while performing construction on plaintiffs' house, see N.C. Gen. Stat. § 87-1, et seq. (2003), thereby establishing defendant's breach of the terms of the building contract. See Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000) (“The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.”)
    The trial court abused its discretion in failing to grantplaintiffs a new trial as a result of Carney's testimony as to the status of defendant's contractor's license and ability to continue construction on plaintiffs' home in December 1999. Accordingly, we need not address plaintiffs' alternative arguments.
    New trial.
    Judges HUNTER and GEER concur.
    Report per Rule 30(e).

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