Appeal by plaintiffs from order entered 27 February 2002 and
judgment entered 12 March 2002 by Judge Claude S. Sitton in the
Superior Court in Burke County. Heard in the Court of Appeals 17
September 2003.
C. Gary Triggs, for plaintiff-appellants.
Cogburn, Goosmann, Brazil & Rose, P.A., by Andrew J.
Santaniello and Frank J. Contrivo, Jr., for defendant-
appellees.
HUDSON, Judge.
On 26 February 1999, plaintiffs, Nancy Newton (Mrs. Newton)
and her son David, filed suit alleging negligence, tortious
interference with plaintiff's business, interference with the quiet
enjoyment of their property, and unfair or deceptive trade
practices on the part of defendants. The jury found that plaintiff
Nancy Newton's property was damaged by the acts of defendants in
the amount of $6,000, and found that David Newton's property and
business were not damaged by defendants. Plaintiffs appeal. For
the reasons discussed below, we conclude that no prejudicial error
affected the claims tried, but that plaintiffs are entitled to a
trial on their claims pursuant to G.S. . 75-1.1, et. seq.
On or about 25 May 1995, defendant First South Construction
Company, Inc. (“First South”) began installing a cross box and
cable for defendant Bellsouth Telecommunications, Inc.
(“Bellsouth”) on property owned by Bellsouth adjacent to property
owned by plaintiff Nancy Newton. Mrs. Newton's house and a
separate woodworking/cabinet shop operated by plaintiff David
Newton (“David”) are situated on this property. According to
David, he first became aware of the cable project on the day it
began, when he went outside and saw the area “full of First South
trucks and trailers and [a] couple [of] cars around and [a] backhoe
sitting in our front yard and [the] front yard was full of people.”
David estimated that as many as twenty people were in the yard atone point.
David went out to address the situation and, in his words,
“[i]t got acrimonious real quick.” Mrs. Newton asked the First
South crew to move, but they refused. David then asked them to
remove their vehicles from the property. After a two-hour argument
that ultimately involved members of the local sheriff's department,
First South moved their vehicles off the Newton property and onto
Bellsouth's adjacent right-of-way. David complained to Bellsouth,
who eventually agreed to build a fence to lessen the noise along
the edge of the Newton's property.
In a four-page letter faxed to Bellsouth, David confirmed the
agreement and also warned Bellsouth of potential problems that
could arise from working on that particular tract. He informed
them that the house and cabinet shop were situated above
subterranean quartz bedrock and warned of the damage that could
result if the bedrock were disturbed. Mr. Newton testified that in
the course of sixteen or eighteen conversations, Bellsouth
repeatedly assured him and his mother that no mistakes would be
made and that Bellsouth would “see to it that First South took care
of” any problems. In addition, the parties signed a written
agreement in which Bellsouth was to “cut the site level with [the
Newton's] yard - taking out existing trees, etc. as needed and to
build a fence for noise abatement and site appearance that matches
the existing fence on the Newton property within reason.”
On or about 28 July 1995, First South began to bore a cable
trench under the road using a pneumatic device called a “mole.”
David was in the cabinet shop at the time, when fluorescent bulbsshook loose and fell, and “[e]verything on the work bench was
cascading in the floor.” Alarmed, he headed to the house and heard
“wham, wham, wham, wham. Whole top of the hill was moving.” In
the house, everything was moving and falling. The vibration lasted
35 to 40 minutes, during which time Mrs. Newton was “absolutely
terrified.” She likened it to an earthquake. Books fell from
shelves and windows broke, and the house moved on its foundation.
David went to the work site, reported the damage and asked
First South to stop. Baxter Hayes, First South's supervisor,
replied, “I don't care what it tears up, who it hurts, or what it
costs.” Only after sheriff's deputies arrived did the crew stop
the drilling and leave.
Max Watts, an engineer and expert in contracting and house
inspections, testified about the damage to the house and shop, and
concluded that the vibration likely caused the damage. He
testified “to a reasonable certainty” that the vibrations from the
boring operation caused the damage he observed to the house and
shop.
Watts inspected the house and shop twice: once a few months
after the initial damage and again in 1997 to determine whether the
problems were static or ongoing. After the second inspection, he
determined that the situation was not stable. He estimated that it
would cost $100,000 to re-stabilize the house, and $150,000 to
bring the shop back to its original condition. Without stabilizing
the foundations, Watts testified, any repairs to the buildings
would be temporary. He testified that cosmetic repairs, without
re-stabilization, would be a waste of money, but would costapproximately $50,000.
After he contacted Bellsouth about the damage, David received
a reply informing him that only First South was responsible, and
that Bellsouth would not pay for the damage. Mr. Newton invited
representatives from both Bellsouth and First South to inspect the
damage. Tom Beggs, defendants' geotechnical engineer, inspected
the house once in 2000. In Beggs' opinion, the extensive damage to
plaintiffs' house and shop was not caused by vibration, and was
cosmetic, rather than structural. He estimated that cosmetic
repairs to the house would cost between $3,000 and $5,000. The
jury found that Mrs. Newton's property was damaged by defendants'
negligence, that David's property was not, and awarded $6,000 to
Mrs. Newton. The court entered judgment accordingly, but, with the
agreement of the parties, ordered that $3,000 be held by the clerk
of court to protect the interests of Mrs. Newton's long-estranged
husband. Plaintiffs appeal.
Plaintiffs first argue that they are entitled to a new trial
on all claims because the trial court limited their cross
examination of several of defendants' expert witnesses, which
prejudiced them. As discussed below, we agree in part.
[1] We note initially that the appellants have not complied
with Appellate Rule 28(d)(1)b, which requires that appellant
include in the appendix to his brief “those portions of the
transcript showing the pertinent questions and answers when a
question presented in the brief involves the admission or exclusion
of evidence.” N.C. R. App. P. 28(d)(1)(b). Defendants did notraise this issue, but we mention it on our own to draw attention to
this oft-ignored provision of the Rules. Compliance by the parties
is valuable because it facilitates review of such issues by all
three members of the panel, in that only one complete transcript is
filed with the Court, but all three panel members receive copies of
the briefs.
[2] Turning to the plaintiffs' argument, the decision to grant
or deny a motion for a new trial or to set aside a jury verdict
rests in the sound discretion of the trial court, and such a ruling
will not be disturbed on appeal absent a manifest abuse of that
discretion.
Coletrane v. Lamb, 42 N.C. App. 654, 656, 257 S.E.2d
445, 447 (1979).
The North Carolina Rules of Evidence provide that the court
shall exercise reasonable control over the interrogation of
witnesses and the presentation of expert opinion evidence “so as to
(1) make the interrogation and presentation effective for the
ascertainment of the truth, (2) avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.”
N.C.G.S. § 8C-1, Rule 611(a). Regarding hypothetical questions,
the rules of evidence provide, in pertinent part, as follows:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts
in the particular field . . ., the facts or data need not
be admissible in evidence.
G.S. . 8C-1, Rule 703. Additionally, Rule 705 provides in
pertinent part that:
There shall be no requirement that expert testimony be in
response to a hypothetical question.
G.S. . 8C-1, Rule 705. Our Courts have held further that even the
omission of a material fact from a hypothetical question does not
necessarily render the question objectionable, or the answer
incompetent.
See Robinson v. J. P. Stevens, 57 N.C. App. 619,
622, 292 S.E.2d 144, 146 (1982).
It is left to the cross-examiner
to bring out facts supported by the evidence that have been omitted
and thereby determine if their inclusion would cause the expert to
modify or reject his or her earlier opinion.
Id. at 623, 292
S.E.2d at 146.
First, the trial court sustained objections to certain
questions during the cross-examination of defendants' expert
engineer, Steve Morris. Before the first such instance, testimony
had shown that plaintiffs' engineer, Max Watts, crawled under the
house and observed that the structural integrity of the piers had
been compromised. Mr. Morris testified that he did not crawl under
the house to observe these piers, thus prompting plaintiffs'
counsel to ask:
Q. So if a person -- a colleague of yours, person in the
same type of business, did crawl under there and did test
those [piers], would you believe that that's probably
what was observed?
THE COURT: Well, the Court on its own SUSTAINS the
objection.
In this ruling, the Court properly declined to allow Mr. Morris to
speculate about someone else's observations regarding the
structural integrity of the piers. Plaintiffs' argument as to this
ruling is without merit.
Shortly thereafter, plaintiffs' counsel asked Mr. Morris
whether a large vibration affecting the structure of the pierscould have affected the integrity of the foundation of the house.
The court sustained defense counsel's objection to this question.
Only three questions later, plaintiffs' counsel asked Mr. Morris:
Q. Now, if, in fact, you were to find that those piers
under the house had been structurally impaired as a
result of vibration, could or would, in your opinion,
that affect the structural integrity of that house?
Again, the trial court sustained defense counsel's objection. The
trial court also sustained an objection to the very next question
that asked Mr. Morris again whether an impairment of the integrity
of the piers might have affected the “overall structural stability
of the structure that those piers were supporting.” We are unable
to conclude that the trial court abused its discretion in these
rulings.
Later in Mr. Morris' testimony, the trial court disallowed two
questions asking whether Mr. Morris looked for a rock outcropping
on the property in the vicinity of the vibration:
Q. Now, if you were out there to discover what the
problems were, don't you think it would be rather
important to go and see if there was, in fact, an
outcropping of rock where this bore took place that you
were being told by a homeowner is what was hit and caused
vibration?
A. Not specifically, no.
Q. Wasn't important to what you were doing?
A. That's correct.
Q. It was certainly important to what he was claiming.
[Defense counsel]: Objection.
Q. Wasn't it?
THE COURT: Sustained.
Q. Well, did you think that it was significant to check
that out if, in fact, you were up there to determine thetruth and whatever was going on if the person that you
were talking with that was giving you the information
that you've told us is important to collect was telling
you that there's an outcropping of rock that was hit that
caused this vibration that caused the damage?
[Defense counsel]: Objection. Asked and answered.
THE COURT: Sustained.
Here, the court properly sustained both objections; the first was
to a statement by counsel, and the second correctly concluded that,
as these excerpts reveal, the question was previously answered. We
reject plaintiffs' arguments as to these rulings.
However, the court also disallowed a question asking whether
it would be reasonable before drilling to investigate whether the
presence of a large vein of rock in the area could possibly cause
damage if struck by the drill:
Q. Based on your experience in that field, if you had a
client or if you, in construction side of the job, were
advised in writing that there was a large quartz vein
that if you hit it in a drilling operation could or might
cause damage, would you think that it would be reasonable
within your trade to investigate that prior to beginning
drilling operation in that area?
[Defense counsel]: Objection.
THE COURT: Sustained.
Finally, the court disallowed two questions to Mr. Morris about a
broken a window:
Q. Now, do you have an explanation for why a window
that's not broken when the house started shaking and
immediately thereafter is broken breaks?
[Defense counsel]: Objection.
THE COURT: Sustained.
***
Q. If you were to find from the evidence that the
window, as depicted in your 3-L, immediately before thevibration was not broken and immediately after the
vibration was broken, what would you conclude from that?
[Defense counsel]: Objection.
THE COURT: Sustained.
Defendants contend that these were improper hypothetical questions
in that they did not contain sufficient factual background. We
conclude, that while these questions may not have been model
hypothetical questions, they posed appropriate questions for the
expert based on matters in evidence. As to the questions regarding
the piers, Max Watts testified that he inspected the piers under
the house and found that the piers had shifted and that the entire
house had moved diagonally on the foundation, which he concluded
resulted from strong vibrations. There were also facts in evidence
underlying plaintiffs' questions regarding the rock outcropping;
David Newton testified that there was a large rock outcropping
where the drilling took place and Max Watts testified as to the
existence of the rock and the role it could play in transmitting
vibrations from the drilling site to the house. David also
testified about windows breaking.
In addition to these rulings during Morris' testimony, the
trial court also limited plaintiffs' cross-examination of
defendants' geotechnical engineer, Tom Beggs. For instance, the
trial court sustained an objection to plaintiffs' question asking
Mr. Beggs if he would be surprised that rock had been hit by the
drill, although Mr. Beggs testified on direct that there were no
rock formations on the property. Nor was counsel allowed to ask
whether the operator of the boring device should have recognized
the difference between hitting rock and drilling through dirt. Andfinally, plaintiffs' counsel was not allowed an answer to his
question to Mr. Beggs asking whether the vibration caused damage to
the house, although he testified on direct that the vibration had
not caused the damage.
We conclude from the evidence as a whole that these questions
were appropriate cross-examination, and the rulings excluding them
were in error. The defendants have cited three cases to support
their argument and all three arose under a previous version of the
rule, which did require hypothetical questions.
See Powell v.
Parker, 62 N.C. App. 465, 303 S.E.2d 225 ,
cert. denied, 309 N.C.
322, 307 S.E.2d 166 (1983);
Goble v. Helms, 64 N.C. App. 439, 307
S.E.2d 807 (1983),
cert. denied, 310 N.C. 625, 315 S.E.2d 690
(1984);
Dean v. Coach Co., 287 N.C. 515, 215 S.E.2d 89 (1975). The
pertinent rules have provided since 1982 that there is “no
requirement that expert testimony be in response to a hypothetical
question.” G.S. . 8C-1, Rule 705.
These questions to Mr. Morris addressed the extent of his
investigation, and his opinions based thereon, as to whether the
house sustained structural damage. However, the jury returned a
verdict finding that the defendants' negligence did cause damage to
Mrs. Newton's property (the house and/or the shop), apparently
believing the opinions of plaintiffs' expert Max Watts, and awarded
damages of $6,000. Thus, we hold that these erroneous rulings are
harmless and do not entitle plaintiffs to a new trial on their
claims based on negligence.
[3] Plaintiffs next argue that the trial court erred in
dismissing their claim for unfair or deceptive trade practicespursuant to Chapter 75 and their claim for punitive damages. For
the following reasons, we agree.
To establish a violation of Chapter 75, plaintiff must show
(1) an unfair or deceptive act or practice, (2) in or affecting
commerce, and (3) which proximately caused injury.
Gray v. N. C.
Ins. Underwriting Ass'n, 352 N.C. 61, 68, 529 S.E.2d 676, 681,
reh'g denied, 352 N.C. 599, 544 S.E.2d 771 (2000). “A practice is
unfair when it offends established public policy as well as when
the practice is immoral, unethical, oppressive, unscrupulous, or
substantially injurious to consumers. [A] party is guilty of an
unfair act or practice when it engages in conduct that amounts to
an inequitable assertion of its power or position.”
Coble v.
Richardson Corp., 71 N.C. App. 511, 520, 322 S.E.2d 817, 823-24
(1984) (citations omitted). Moreover, an act or practice is
deceptive if it has the capacity or tendency to deceive.
Horack v.
Southern Real Estate Co., 150 N.C. App. 305, 310, 563 S.E.2d 47, 51
(2002). Proof of actual deception is not required.
Id.
A “[s]imple breach of contract . . . [does] not qualify as [a
violation of Chapter 75], but rather must be characterized by some
type of egregious or aggravating circumstances before the statute
applies.”
Norman Owen Trucking v. Morkoski, 131 N.C. App. 168,
177, 506 S.E.2d 267, 273 (1998). In
Mosley & Mosley Builders v.
Landin Ltd., 97 N.C. App. 511, 389 S.E.2d 576,
disc. review denied,
326 N.C. 801, 393 S.E.2d 898 (1990), this Court held that a breach
of contract accompanied by fraud or deception constitutes an unfair
or deceptive trade practice.
Id. at 518, 389 S.E.2d at 580.
Our Supreme Court has held (1) that the statement of anintention to perform an act, when no such intention exists,
constitutes misrepresentation of the promisor's state of mind, an
existing fact, and as such may furnish the basis for an action for
fraud if the other elements of fraud are present,
Roberson v.
Swain, 235 N.C. 50, 55, 69 S.E. 2d 15, 19 (1952);
see also Wilkins
v. Finance Co., 237 N.C. 396, 75 S.E. 2d 118 (1953); and (2) that
proof of fraud necessarily constitutes a violation of the statutory
prohibition against unfair and deceptive acts,
Hardy v. Toler, 288
N.C. 303, 309, 218 S.E. 2d 342, 346 (1975).
Here, when David Newton complained to Bellsouth about First
South's intrusion on their property, he and Bellsouth, through an
agent of Bellsouth, reached an agreement whereby Bellsouth would
build a fence along the edge of the property to baffle the noise.
Further, evidence showed that Mr. Newton was repeatedly assured by
representatives of Bellsouth that no problems would be encountered,
and that if any were, they would see to it that First South
remedied any damage done to the property.
Other testimony tended to show that neither Bellsouth nor
First South had any intention to follow through on either
assurance. For example, First South's supervisor, Baxter Hayes,
testified that he had no communication with Bellsouth regarding any
agreement with Mr. Newton. Mr. Hayes also stated that “Bellsouth
instructed us to do that job and, when we encountered problems with
Mr. Newton, we talked to Bellsouth and Bellsouth said to proceed.”
David's testimony about Mr. Hayes' response to his report of
damage, that “[he didn't] care . . .” supports this as well.
Plaintiffs presented evidence that tended to show that,despite its representations to David, Bellsouth had never intended
to fulfill its agreement, except for building a small fence along
the property line. Indeed, after the incident involving the
vibration, Mr. Newton contacted Bellsouth and received a reply
letter stating that “As you were advised, First South is
responsible for the investigation and settlement, if necessary, of
claims resulting from the work which they perform under contract
for BellSouth.”
In ruling on a motion for a directed verdict,
The question raised [] is whether the evidence is
sufficient to go to the jury. In passing upon such
motion the court must consider the evidence in the light
most favorable to the non-movant. That is, the evidence
in favor of the non-movant must be deemed true, all
conflicts in the evidence must be resolved in his favor
and he is entitled to the benefit of every inference
reasonably to be drawn in his favor. It is only when the
evidence is insufficient to support a verdict in the
non-movant's favor that the motion should be granted.
Dockery v. Hocutt, 357 N.C. 210, 217, 581 S.E.2d 431, 436 (2003)
(citations and internal quotation marks omitted).
We believe that this evidence, taken in the light most
favorable to plaintiffs, is sufficient to go to the jury on a claim
under Chapter 75, as to both defendants. The same evidence is also
sufficient to establish plaintiffs' claim for punitive damages
pursuant to G.S. . 1D-15.