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.
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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