An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA 04-292


Filed: 15 February 2005


v .                         Mecklenburg County
                            No. 01 CVS 5812

    Appeal by plaintiff from judgment entered 12 May 2003 by Judge Yvonne M. Evans in Superior Court of Mecklenburg County. Heard in the Court of Appeals 13 October 2004.

    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).
    Judges CALABRIA and GEER concur.
    Report per Rule 30(e).

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