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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
HARRY J. REAVES and SHELIA REAVES, Plaintiffs, v. JEROME
NATHANIEL HAYES, Defendant
Filed: 1 November 2005
1. Contracts_construction of driveway_consent judgment_specifications_not
So long as defendant's ability to use a driveway built to benefit both parties is not
adversely affected, specifications regarding the location of a driveway and the types of rock
comprising the driveway cannot be construed as dependent covenants (which are indispensable to
the parties' intent). The trial court did not err by allowing recovery from defendant for the cost of
the driveway despite deviations from the consent order which required its construction.
2. Judgments_consent_construction of driveway_value of plaintiff's labor
A consent order for the building of a driveway to benefit both parties did not permit
plaintiff, who had worked in the business, to charge defendant for the value of his services in
building the driveway. Read in context, the term labor costs includes only hired labor.
Appeal by plaintiffs and defendant from judgment entered 26
April 2004 by Judge Andy Cromer in Guilford County Superior Court.
Heard in the Court of Appeals 14 September 2005.
Mercedes O. Chut for plaintiff appellants-appellees.
William G. Barbour for defendant appellant-appellee.
Plaintiffs appeal from a judgment in which the trial court
remitted a jury verdict against defendant for costs associated with
the construction of a driveway and denied plaintiffs' request for
attorneys fees. Defendant appeals from the portion of the judgment
fixing his liability. We conclude that the trial court
misinterpreted the agreement which establishes defendant's
liability such that a new trial is required.
Plaintiffs, Harry J. Reaves (hereinafter Reaves) and his
daughter, Shelia Reaves, and defendant, Jerome Nathaniel Hayes
(hereinafter Hayes), are the record owners of real property
located on or near Miltonwood Road in Guilford County, North
Carolina. Prior to 21 September 1990, the Reaveses' property had
access to a public right of way, and Hayes' property did not. A
consent order entered on 21 September 1990 granted Hayes a twelve-
foot-wide access easement across the Reaveses' property and granted
the Reaveses a twelve-foot-wide access easement along the southern
boundary of Hayes' property. The consent order further provided
6. . . . [Hayes] shall be responsible and liable
for the expenses incurred in the construction of a 6 inch
crush and run driveway along the access easement to the
southwest corner of his property for the mutual benefit
of [Hayes] and the . . . Reaves[es], including any
surveying costs involved in locating the exact path of
. . . .
8. If [Hayes] fails to build the driveway as
described . . . and the . . . Reaves[es] construct the
driveway[,] they shall be entitled to a lien against the
property of [Hayes] for the entire amount expended for
the construction of this driveway, including, but not
limited to, surveying costs, grading costs, materials
costs and labor costs, and enforceable pursuant to the
North Carolina Statutory Liens on Real Estate general
Reaves ultimately built the driveway himself, and thereafter, he
and his daughter filed suit against Hayes for, inter alia,
construction costs in the amount of $25,675.
The evidence adduced at trial tended to show that, before
retiring, Reaves had worked in grading and clearing land andconstructing driveways, and that he had fastidiously attended to
the building of the driveway in the instant case. According to
Reaves, he spent approximately 700 hours clearing and grading the
land, preparing the soil, building a base, and installing stone.
Reaves sought $18,850 as payment for his own labor, based on an
estimate of the cost of completing the driveway submitted to Reaves
by a company that specializes in grading, clearing, and grubbing
Though the consent judgment provided for the use of crush and
run, Reaves instead used sandrock as a base for the driveway. The
evidence showed that sandrock was less expensive than crush and
run. Further, Reaves placed washed stone rather than crush and run
on top of the base. Reaves testified that an applicable city code
required the use of washed stone as opposed to crush and run, and
washed stone was less expensive than crush and run.
The jury rendered a verdict against Hayes for $21,500. The
trial court remitted $2,975 from this verdict and entered a
judgment for $18,525 against Hayes. The trial court denied the
Reaveses' motion for attorneys fees. Both parties now appeal.
 The first issue for our consideration is whether the trial
court erred by allowing recovery for a non-conforming driveway.
Hayes argues that Reaves and his daughter are entitled to recover
nothing because, inter alia
, the location of the driveway does not
correspond to the location of Hayes' easement, and Reaves
substituted sandrock and washed stone for the crush and runrequired by the consent order. We conclude that Reaves' deviations
from the consent order do not necessarily justify excusing Hayes
from his obligations under the parties' agreement.
A consent judgment is a contract between the parties entered
upon the records of the court with the approval and sanction of a
court of competent jurisdiction. It is construed as any other
contract. Mullen v. Sawyer
, 277 N.C. 623, 629, 178 S.E.2d 425,
428 (1971). Thus, a consent judgment must be enforced according
to contract principles. Helms v. Schultze
, 161 N.C. App. 404,
409, 588 S.E.2d 524, 527 (2003). Under contract law, if there are
two parties to a construction contract, and one party's performance
is substantial and beneficial to the other party, yet fails to
completely comply with the parties' agreement, then the other party
is not necessarily entitled to avoid the contract. Poe & Co. v.
, 174 N.C. 762, 765, 94 S.E. 420, 421 (1917). In such
cases, the outcome hinges on whether the incomplete performance
constitutes a breach of a dependent covenant of the agreement:
A covenant is dependent where it goes to the
whole consideration of the contract; where it
is such an essential part of the bargain that
the failure of it must be considered as
destroying the entire contract; or where it is
such an indispensable part of what both
parties intended that the contract would not
have been made with the covenant omitted. A
breach of such a covenant amounts to a breach
of the entire contract; it gives to the
injured party the right to sue at law for
damages, or courts of equity may grant
rescission in such instances if the remedy at
law will not be full and adequate.
Wilson v. Wilson
, 261 N.C. 40, 43, 134 S.E.2d 240, 242-43 (1964)
In the instant case, paragraph six of the consent order
contains Hayes' agreement to be responsible and liable for the
expenses incurred in the construction of a 6 inch crush and run
driveway along the access easement to the southwest corner of his
property. The dependent covenant upon which Hayes' liability
hinges is the installation of a useable driveway. So long as
Hayes' ability to make full use of the driveway is not adversely
affected, the specifications regarding the location of the driveway
and the types of rock which comprise it cannot be construed as
(See footnote 1)
Hayes has not filed a counterclaim for
breach of contract by Reaves, has not sought relief from the
consent order, and has not alleged that Reaves' failure to install
the driveway in the proper place and with the correct materials has
entirely deprived him of what he bargained for: a useable driveway.
Therefore, the trial court was not compelled to conclude that
Hayes should be relieved of his obligation to pay the amount
expended to build the driveway. The corresponding assignments oferror are overruled.
 The next issue is whether the trial court misinterpreted
the consent order when it permitted Reaves and his daughter to
recover the value of Reaves' services in installing the driveway.
Hayes argues that Reaves' labor is not recoverable under the plain
and unambiguous language of the consent order. We agree.
As a consent order is merely a court-approved contract, it is
subject to the rules of contract interpretation. Walton v. City
of Raleigh, 342 N.C. 879, 881, 467 S.E.2d 410, 411 (1996). The
proper interpretation of a contractual provision presents a
question of law, which is reviewed de novo by this Court. Sears
Roebuck & Co. v. Avery, 163 N.C. App. 207, 211, 593 S.E.2d 424, 428
(2004). In interpreting a contract, our courts adhere to the
[T]he goal of construction is to arrive at
the intent of the parties when the [contract]
was [written]. Where a [contract] defines a
term, that definition is to be used. If no
definition is given, non-technical words are
to be given their meaning in ordinary speech,
unless the context clearly indicates another
meaning was intended. The various terms of the
[contract] are to be harmoniously construed,
and if possible, every word and every
provision is to be given effect. . . . [I]f
the meaning of the [contract] is clear and
only one reasonable interpretation exists, the
courts must enforce the contract as written;
they may not, under the guise of construing an
ambiguous term, rewrite the contract or impose
liabilities on the parties not bargained for
and found therein.
Gaston County Dyeing Machine Co. v. Northfield Ins. Co., 351 N.C.
293, 299-300, 524 S.E.2d 558, 563 (2000) (citations omitted).
In the instant case, paragraph eight of the consent order only
subjects Hayes to liability for the entire amount expended for the
construction of th[e] driveway, including, but not limited to,
surveying costs, grading costs, materials costs and labor costs.
None of these terms is further defined. Thus, each word must be
construed in accordance with its ordinary meaning and in light of
the given context.
The word amount, as it is used in the consent order, is
synonymous with the word sum, which most often means an
indefinite or specified amount of money. Webster's Third New
International Dictionary, Unabridged 72, 2289 (1968). The verb expend,
which is expressed in the past tense as expended, means to pay
out or distribute and is synonymous with the word spend. Id. at
799. Consequently, in the provision at issue, the plain and
unambiguous meaning of the phrase amount expended is money paid
out. Further, the consent judgment is structured such that labor
costs are a subset of the amount expended. Therefore, read in
context, the term labor costs includes only hired labor.
Accordingly, the consent order does not permit Reaves to
charge Hayes for the value of his services, and the trial court
erred by construing the consent order to the contrary. Thus, Hayes
is entitled to a new trial.
Our resolution of the issue discussed in section II, supra
makes it unnecessary to address the parties' remaining arguments on
appeal. We note, however, that this opinion should not be taken as
suggesting that the method by which Reaves sought to prove the
value of his services was sufficient to prove this item of alleged
damages with reasonable certainty. Olivetti Corp. v. Ames Business
, 319 N.C. 534, 547-48, 356 S.E.2d 578, 586 (As part
of its burden, the party seeking damages must show that the amount
of damages is based upon a standard that will allow the finder of
fact to calculate the amount of damages with reasonable
certainty.), reh'g denied
, 320 N.C. 639, 360 S.E.2d 92 (1987);
Whiteside Estates, Inc. v. Highlands Cove, L.L.C.
, 146 N.C. App.
449, 462, 553 S.E.2d 431, 440 (2001) (noting that the claiming
party must present relevant data providing a basis for a reasonable
estimate), disc. review denied
, 356 N.C. 315, 571 S.E.2d 220
(2002). Furthermore, this opinion should not be read as condoning
the trial court's decision to remit the jury's verdict without the
Reaveses' consent. Gardner v. Harriss
, 122 N.C. App. 697, 699, 471
S.E.2d 447, 449 (1996) (It is well established that the trial
courts in this State have no authority to grant remittitur without
the consent of the prevailing party.).
The trial court's judgment is vacated, and this case is
remanded for a
Judges McGEE and JACKSON concur.
We note, however, that because the consent order specifies
that crush and run shall be used, Hayes may not be required to
pay for a more costly material chosen on a whim by Reaves. See
Robbins v. Trading Post
., 251 N.C. 663, 666, 111 S.E.2d 884,
887 (1960) (noting that, in a 'construction contract[,] . . . a
party is entitled to have what he contracts for or its
equivalent') (citation omitted). Likewise, if Reaves in fact
chose an improper location for the driveway, such action
standing alone did not change the agreed-to location of Hayes'
easement. See id
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