INLAND FRESH SEAFOOD
CORPORATION OF AMERICA, INC.,
Plaintiff,
v
.
Mecklenburg County
No. 01 CVS 5812
SOUTHERN PINE RENOVATIONS, INC.
and DELARVAS INTERNATIONAL, INC.,
Defendants.
Wimberly, Lawson, Steckel, Nelson & Schneider, P.C., by Les A.
Schneider (pro hac vice) and Rhonda L. Klein (pro hac vice),
for plaintiff-appellant.
Richard L. Robertson & Associates, P.A., by Richard L.
Robertson and Karen R. Feeken, for defendant-appellee Southern
Pine Renovations, Inc.
STEELMAN, Judge.
Plaintiff-appellant, Inland Fresh Seafood Corporation of
America, Inc. (Inland), is a wholesale seller of fresh fish and
seafood. Defendant-appellee, Southern Pine Renovations, Inc.
(Southern Pine), is a general contractor. On 4 April 1998, Inland
and Southern Pine entered into a contract whereby Southern Pine
agreed to convert an existing portion of Inland's building into a
commercial freezer. Inland provided the drawings for the design of
the freezer and Delarvus International, Inc. (Delarvus) provided a
project supervisor. After Southern Pine began construction, achange was made to the height of the freezer floor. It was
disputed whether Inland approved this change. Around November
1999, the walls and the floor of the freezer began shifting,
resulting in the freezer being inoperative for four months and
requiring extensive repairs. A dispute arose over the cause of
this shifting.
Inland filed a complaint on 26 March 2001 in the Superior
Court of Mecklenburg County asserting claims against both
defendants for breach of contract and negligent construction.
Delarvus did not respond to the complaint and the trial court
entered a default judgment against Delarvus. Inland proceeded to
trial against Southern Pine on the theories of negligence, breach
of contract, and breach of implied warranty. On 8 May 2003, the
jury returned a verdict in favor of Southern Pine on all theories.
Inland filed a motion for a new trial, which the trial court
denied. Inland appeals. Further relevant facts will be discussed
in the context of our review of Inland's assignments of error.
In Inland's first assignment of error, it contends the trial
court erred in qualifying Ron McClure as an expert witness and
allowing McClure to give improper opinion testimony, asserting
there was no basis upon which to determine the reliability of his
testimony. We disagree.
We first note that Inland violated Rule 10(c)(1) of our Rules
of Appellate Procedure, which sets forth the requirements regarding
the form of an assignment of error. Rule 10(c)(1) provides that an
assignment of error will be in compliance with the rules if it“directs the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references.” N.C. R. App. P. 10(c)(1) (2004)
(emphasis added). In Inland's first assignment of error it cites
to seventy-two pages of the trial transcript. This does not
constitute a “clear and specific . . . transcript reference[].”
Compliance with the Rules of Appellate Procedure is mandatory and
a party's failure to comply with them subjects an appeal to
dismissal. Steingress v. Steingress, 350 N.C. 64, 65, 511 S.E.2d
298, 299 (1999). Nevertheless, we address the merits of this
issue. N.C. R. App. P. 2 (2004).
Counsel for Southern Pine tendered McClure as an expert in the
field of general contracting and in the field of construction and
design defects. Inland objected, and as a result, the trial court
conducted a voir dire hearing on McClure's qualifications. During
the course of the hearing, counsel for Inland elicited testimony
that McClure's work in the field of moisture intrusion dealt with
stucco, not concrete. The remainder of McClure's qualifications
were not disputed. The following are McClure's undisputed
qualifications, which were elicited at trial: (1) he was a licensed
general contractor in North Carolina and California; (2) he had
been involved in the construction industry for thirty-two years;
(3) he constructed residential, commercial, and industrial
buildings; (4) he was closely involved in the construction of more
than fifty restaurant facilities, most of which required the
construction of a freezer; (5) he owned a business which providesconsultations and inspections in the area of construction design
and defects; (6) he has been retained as a consultant in more than
one thousand cases since 1995; and (7) his business focuses
primarily on moisture intrusion analysis, which involves finding
the source of moisture, the extent of the damage, and the best
routes of repair. At the conclusion of the voir dire, the trial
court ruled that McClure was qualified to testify as an expert
witness.
“[A] trial court's ruling on the qualifications of an expert
or the admissibility of an expert's opinion will not be reversed on
appeal absent a showing of abuse of discretion.” Howerton v. Arai
Helmet, Ltd., 358 N.C. 440, 458, 597 S.E.2d 674, 686 (2004). An
abuse of discretion occurs when the trial court's ruling is
“manifestly unsupported by reason or one so arbitrary that it could
not have been the result of a reasoned decision.” Briley v.
Farabow, 348 N.C. 537, 547, 501 S.E.2d 649, 656 (1998). We discern
no abuse of discretion in the trial court's decision to allow
McClure to testify as an expert witness in the areas of general
contracting, construction defects, and design defects.
We now turn to the issue of whether the trial court allowed
McClure to render opinions outside of his area of expertise.
Inland specifically contends it was improper for McClure to express
an opinion as to the amount of time required for concrete to cure,
and that the shifting of the freezer floor occurred because the
concrete was not properly cured prior to freezing. Inland directs this Court to the portion of McClure's written
report discussing the freezing of the concrete as the basis of his
asserted error. When Southern Pine offered McClure's report into
evidence, Inland's counsel stated, “No objection.” The trial court
then received the report into evidence. Subsequently, Southern
Pine requested the report be published to the jury. At that point,
Inland objected to two specific portions of the report. After a
lengthy discussion with counsel, the trial judge ordered the two
portions of the report redacted. Neither of these two portions of
the report dealt with McClure's opinion of the curing and freezing
of the concrete, which Inland now assigns as error. In the absence
of an objection at trial, this question is not properly before this
Court. See N.C. R. App. P. 10(b)(1) (2004). See also Wooten v.
Warren, 117 N.C. App. 350, 354, 451 S.E.2d 342, 345 (1994)
(concluding that where the defendant did not specify as grounds for
his objection that the testimony of the expert was beyond his area
of expertise, the defendant failed to properly preserve that
question for appellate review as required by Rule 10(b)(1)).
In a footnote found in the Statement of Facts portion of
Inland's brief, it requests that we exercise our discretion under
Rule 2 of the Rules of Appellate Procedure and review any questions
posed to McClure, regardless of whether they objected at trial, in
order to prevent “manifest injustice.” We decline this invitation.
Because we find that the trial court did not did not abuse its
discretion in qualifying McClure as an expert and that there is not
a properly preserved assignment of error as to this evidence, it isunnecessary that we discuss the question of the reliability of
McClure's testimony.
In Inland's second assignment of error, it contends the trial
court improperly admitted the testimony of Southern Pine's expert,
McClure, including the witness' report, because the testimony was
outside of the areas in which the court found him to be an expert.
In the absence of an objection at trial, this matter is not
properly before this Court. N.C. R. App. P. 10(b)(1).
Inland next contends the trial court erred in allowing McClure
to render opinion testimony concerning the obligations of Southern
Pine under the contract, over its objection.
One of the issues at trial dealt with a change in the height
of the floor. The contract drawings called for a twelve inch high
floor to be constructed on top of a pre-existing concrete slab. As
finally constructed, the new floor was not twelve inches high, but
eight inches high. There was a dispute as to whether this change
was at the direction of or authorized by Inland. Disputed
testimony was also given as to whether Mr. Guice, the owner of
Carolina Refrigeration, which was responsible for the installation
of the actual freezer unit, provided Southern Pine with drawings
showing a different design for the floor. At trial, Inland's
counsel asked McClure whether Southern Pine could have used any
drawings provided by Guice. McClure responded that under the
contract, the owner was required to provide the drawings, and the
contractor could not use drawings from “secondary sources” without
the owner's permission. Even assuming the trial court erred in allowing McClure to
express a legal opinion construing the provisions of the contract
between Inland and Southern Pine, Inland cannot show they were
prejudiced as a result. The contract between Inland and Southern
Pine was admitted into evidence. In the contract it stated that
before any change could be made to the project, the owner (Inland)
must first agree. The record in this case is devoid of any
testimony that Guice was at any time acting as the agent of Inland,
or was authorized to make changes in the design of the construction
project. As such, this assignment of error is without merit.
Inland failed to argue their remaining assignments of error in
their brief. Therefore, they are deemed abandoned. N.C. R. App.
P. 28(b)(6).
NO ERROR.
Judges CALABRIA and GEER concur.
Report per Rule 30(e).
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