An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1255


Filed: 20 July 2004


    v .                             Harnett County
                                No. 02 CVS 00093

    Appeal by defendant from judgment filed 26 February 2003 and order filed 20 March 2003 by Judge Wiley F. Bowen in Harnett County Superior Court. Heard in the Court of Appeals 9 June 2004.

    Bain & McRae, by Edgar R. Bain, for plaintiff-appellee.

    Everett, Gaskins, Hancock & Stevens, LLP, by E.D. Gaskins, Jr., for defendant-appellant.

    BRYANT, Judge.

    Church of God in Christ Jesus of Angier (defendant) assigns error to an order filed 20 March 2003 denying its motion for judgment notwithstanding the verdict as relates to a breach of construction contract jury verdict in favor of Gibson Contractors, Inc. (plaintiff).
    On 27 July 2001, defendant entered a contract with plaintiff for the construction of a learning center for a fixed price of $144,000.00 plus extras. On 17 January 2002, plaintiff filed a complaint against defendant, alleging a breach of contract and unfair and deceptive trade practices, because defendant would not allow plaintiff on the construction site thereby preventingplaintiff from completing construction. Defendant answered and counterclaimed alleging breach of contract.
    These matters came to jury trial at the 17 February 2003 session of Harnett County Superior Court with the Honorable Wiley F. Bowen presiding. At trial, defendant moved for directed verdict as to the unfair and deceptive trade practices claim together with the issue of whether plaintiff substantially performed its duties under the contract. The trial court granted the motion for directed verdict as to the unfair and deceptive trade practices claim but denied the motion as to the issue of substantial performance. By verdict rendered on 26 February 2003, the jury found that plaintiff had substantially performed its obligations arising out of the contract and awarded damages in the amount of $22,172.00. The jury did not award damages as to defendant's counterclaim.
    Defendant moved for judgment notwithstanding the verdict as to plaintiff's breach of contract claim and alternatively to grant a new trial. By order filed 20 March 2003, the trial court denied the motion. Defendant filed notice of appeal on 21 April 2003 from the underlying judgment and the order denying its motion for judgment notwithstanding the verdict and, in the alternative, a new trial.


    The issue on appeal is whether the trial court erred in denying defendant's motion for judgment notwithstanding the verdict.    “'In ruling on the motion [for judgment notwithstanding the verdict], the trial court must consider the evidence in the light most favorable to the nonmoving party, giving him the benefit of all reasonable inferences to be drawn therefrom and resolving all conflicts in the evidence in his favor.'” Martishius v. Carolco Studios, Inc., 355 N.C. 465, 473, 562 S.E.2d 887, 892 (2002) (citation omitted). “'The party moving for judgment notwithstanding the verdict, like the party seeking a directed verdict, bears a heavy burden under North Carolina law.'” Id. (citation omitted). The motion for judgment notwithstanding the verdict should be denied when the trial court “'finds any evidence more than a scintilla to support plaintiff's prima facie case.'” Lee v. Bir, 116 N.C. App. 584, 588, 449 S.E.2d 34, 37 (1994) (citation omitted).
    Defendant argues there exists insufficient evidence that plaintiff substantially performed its obligations under the construction contract; therefore, the trial court erred in denying defendant's motion for judgment notwithstanding the verdict.
    The equitable doctrine of substantial performance allows a party to recover against a contract even though the party has not literally complied with the contract's provisions. Cator v. Cator, 70 N.C. App. 719, 722, 321 S.E.2d 36, 38 (1984). Use of the doctrine is generally reserved for situations where only minimal work is left to be completed, or the defects or omissions are of such a nature that can be remedied. Black v. Clark, 36 N.C. App. 191, 195, 243 S.E.2d 808, 811 (1978) (“the doctrine was conceivedfor use in a situation where the obligor-plaintiff has given the obligee-defendant a substantial portion of that for which he bargained and the performance is of such a nature that it cannot easily be returned”). “Whether there has been substantial performance of a contract is [a question] of fact for the jury.” Black, 36 N.C. App. at 195, 243 S.E.2d at 812.
    The facts reveal that plaintiff was hired to build a 30' x 80' wood-framed building to be used as a learning center. According to the contract, “[a]ll work must be according to the approved plan of Harnett County Fire Marshall [sic] and Health Board to ensure that a certificate of occupancy will be issued.” Defendant terminated the contract by letter dated 20 December 2001. In the months preceding the termination of the contract, defendant paid two of plaintiff's invoices totaling $128,160.00 and one change order in the amount of $8,684.55. Plaintiff sent three additional invoices to defendant prior to receiving the notice of termination. These invoices, totaling $32,970.00, went unpaid.
    In the letter terminating plaintiff's contract, defendant noted that plaintiff had failed to install: three fire extinguishers; a key lock box for the fire marshal; four commercial door closers for all exit doors; a completed can wash; and sufficient lighting for infant rooms, closets, and storage areas.   (See footnote 1)  The termination letter also noted the drainage in the kitchen floor was improperly installed, the installation of a damaged or used hotwater heater in room # 4, and outside blocks needed painting. The following day, 21 December 2001, plaintiff attempted to continue with construction but was refused entry on the construction site.
    Defendant argues it was denied a certificate of occupancy because of the defects or omissions and, as a result, was unable to open the center on the expected January 2002 date. Defendant, therefore, contends it did not receive the benefit of the bargained for contract. The facts, however, reveal only minimal work remained incomplete, and the defects or omissions were of such a nature that they could be easily remedied. See Black, 36 N.C. App. at 195, 243 S.E.2d at 811. In fact, many of the defects or omissions were later remedied by defendant as admitted in its termination letter to plaintiff.
     As defendant has failed to meet its “heavy burden under North Carolina law,” Martishius, 355 N.C. at 473, 562 S.E.2d at 892, to show there existed insufficient evidence to submit to the jury, this assignment of error is overruled.
    No error.
    Judges TYSON and STEELMAN concur.
    Report per Rule 30(e).

Footnote: 1
    Defendant later made most or all of the necessary remedies regarding these items.

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