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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.
KEVIN TURNER and wife, LARA TURNER, Plaintiffs, v. DOUGLAS E.
Filed: 5 September 2006
1. Contracts_construction of house_evidence of contract and damages sufficient
The trial court did not err by denying defendant's motion for a directed verdict or by
denying his motion for a judgment n.o.v. in a contract action arising from the construction of a
house. There was sufficient evidence of the contract and of damages, viewed in the light most
favorable to plaintiffs.
2. Contracts_counterclaim_no evidence presented_properly denied
The trial court did not err by granting plaintiff's motion for a directed verdict on
defendant's counterclaim in an action arising from the construction of a house where defendant
presented no evidence to support his claim.
3. Appeal and Error_preservation of issues--assignment of error_not supported by
reason and argument
An assignment of error that the jury's verdict and the court's judgment accepting the
verdict were erroneous For the reasons set forth...above.... was deemed abandoned for failure
to set forth supporting reason or argument.
Appeal by defendant from judgment entered 26 May 2005 and
orders entered 29 June 2005 by Judge Ronald K. Payne in Haywood
County Superior Court. Heard in the Court of Appeals 15 August
Patrick U. Smathers, P.A., by Patrick U. Smathers, for
Hyler & Lopez, P.A., by George B. Hyler, Jr. and Robert J.
Lopez, for defendant-appellant.
Douglas E. Ellis (defendant) appeals from judgment entered
after a jury returned a verdict in favor of Kevin Turner (Turner)
and Lara Turner (collectively, plaintiffs) and from ordersgranting plaintiffs' motion for directed verdict on defendant's
counterclaim, denying defendant's motion for directed verdict and
judgment notwithstanding the verdict, and disbursing funds and
setting costs. We affirm.
In 1980, Turner bought a 1.8 acre tract in the Upper Crabtree
Community of Haywood County. In 1986, Turner purchased an
adjoining parcel. The two parcels combined equaled ten acres. A
portion of the property was graded to allow a residence to be
built. Turner had served as a church pastor in the Piedmont area
and had been given several tobacco barns, which he dismantled and
transported to Haywood County. Turner reassembled the pieces into
a tobacco barn with the intent to eventually renovate the structure
and use it as his home. From 1981 until 1999, the barn was used
for storage and occasionally as a campsite.
In 1999, Turner parked a camper on the property and applied
for a building permit to prepare the site to construct a permanent
residence. A septic system was installed, a well was dug, and
temporary electricity was installed.
In 2000, Turner married Lara Gravely. Plaintiffs finalized
plans for their residence and began to search for construction
financing. Mountain Bank, now known as Carolina First, agreed to
provide a construction loan, if plaintiffs hired a general
In late 2001, Turner attempted to contact defendant, an
extended family member and a licensed general contractor. Nocommunication occurred between Turner and defendant until October
2002. Plaintiffs provided house drawings to defendant and later
met with defendant at his home to discuss the project. Defendant
agreed to serve as general contractor, but stated he did not build
log homes. Defendant told plaintiffs they would have to hire a
subcontractor to complete that portion of the job. Defendant
recommended Mitchell Langford (Langford), an individual he had
recently worked with to construct a log home. Defendant showed
plaintiffs a house he and Langford had recently built together.
Defendant and plaintiffs discussed aspects of the construction,
such as materials to be used to construct the residence.
Defendant quoted plaintiffs $185,000.00 as the cost required
to build their home. This quote included a $9,000.00 contracting
fee. Plaintiffs contracted with Langford to separately complete
the log work. Langford recommended plaintiffs obtain blueprints of
the house. On 1 November 2002, a copy of the blueprints were given
to defendant and Langford with some modifications from plaintiffs'
original handwritten plans. No changes were quoted to the original
cost to build the home.
Before signing the loan agreement, an itemized construction
cost breakdown and a construction timetable of nine to twelve
months was presented to plaintiffs by defendant. Mountain Bank
issued the loan commitment after plaintiffs and defendant signed a
Construction Loan Agreement on 19 November 2002. The parties
agreed the cost to build the house was $185,000.00 and would not
exceed $225,000.00. Plaintiffs obtained a construction loan forthe maximum amount of $225,000.00. Plaintiffs planned to use
excess loan funds to reimburse costs expended on the original
structure and for sufficient funds for cost overruns and closing
In December 2002, an excavator began to prepare the site and
foundation blocks were laid the following May. By September 2003,
most of the logs were installed. After October, plaintiffs became
frustrated because defendant could not locate a contractor to
install the metal roof. Water began to seep into the structure.
During late December 2003 and early January 2004, financial
difficulties arose and work ceased.
Mountain Bank inspected the property to ensure funds were
being expended appropriately as construction progressed. Mountain
Bank discovered construction was not progressing at a rate that
matched the expenditure of the funds. Mountain Bank informed
plaintiffs that no additional loan funds would be advanced due to
the level of construction completed. Turner discussed the
situation with defendant, who informed him of cost overruns.
Turner told defendant that he couldn't figure that [they] could
finish the house with the amount of money that [he] was borrowing
from the bank. Defendant told Turner that he would complete the
construction on the house for $105,600.00, if $20,912.97 currently
owed was paid. Plaintiffs agreed.
Plaintiffs did not have available funds to finish the project.
Plaintiffs returned to Mountain Bank and requested a second
construction loan. Plaintiffs and defendant met with officials ofMountain Bank. A document was prepared by defendant itemizing the
cost to complete the project. The document contained a clause that
stated, Costs to complete home not to exceed $105,600[.00]. The
document was signed by both plaintiffs and defendant. Plaintiffs
rolled their first loan into a larger loan totaling $300,000.00.
Work resumed on the house after the document was signed.
Plaintiffs demanded a strict accounting of funds being spent.
Originally, all invoices approved by defendant would go to Turner
and he would write a check to defendant. The check was drawn on an
account opened with funds solely to be used for construction.
Plaintiffs changed the method of how payments on invoices
would be made. All further invoices were to be submitted directly
to Mountain Bank. After submission, an invoice amount would be
placed under a certain line item on a document signed by plaintiffs
and defendant. Plaintiffs told Mountain Bank that anytime one line
item exceeded the amount designated, defendant would have to pull
from a different line item so the total cost to complete
construction would not exceed $105,600.00. After an invoice was
submitted, Mountain Bank would issue payment to defendant.
Styrofoam insulating blocks were installed in preparation for
the metal roof and work continued inside the residence. In April
2004, a rainstorm caused significant water damage to the inside of
the house. Turner told defendant it was his responsibility to
repair the damage. Defendant responded that he was not the general
contractor and that he had only agreed to help them. This was the
first time defendant stated he was not the general contractor forthe construction. Defendant issued Turner an invoice for
$14,348.00 over the revised maximum cost. Plaintiffs wrote
defendant a letter which discussed the water damage to the house
and plaintiffs' expectations for defendant to prevent additional
water damage in the future. The letter referred to their agreement
that the cost to complete the house would not exceed $105,600.00.
Plaintiffs and defendant met to discuss the letter. Defendant
gave Wayne Miller's (Miller) telephone number to plaintiffs and
told them Miller could install the roof, but defendant wasn't
going to have anything to do with it. Defendant stated he would
meet with plaintiffs to discuss how to finish the house at the
agreed cost. Defendant did not appear at the meeting. Plaintiffs
were later served with a $27,000.00 lien on their house filed by
defendant. Plaintiffs had no further contact with defendant after
the lien was filed. All work on the house ceased.
Plaintiffs attempted to find another general contractor to
finish the job. Mountain Bank gave Turner permission to finish it
himself. Plaintiffs received an unsecured loan for $91,000.00.
Turner found construction crews who would perform different tasks
and performed some of the work himself. In September 2004,
plaintiffs received a Certificate of Occupancy from Haywood County.
After plaintiffs received the Certificate of Occupancy, they were
able to close a final loan with Mountain Bank totaling $403,000.00.
Plaintiffs continued to complete construction until funds were
depleted. The construction work was not fully completed according
to the plans. Plaintiffs filed a complaint seeking damages for breach of
contract and negligence. A jury trial was held on 23 and 24 May
2005. At the conclusion of the evidence, the trial court granted
defendant's motion for directed verdict for plaintiffs' negligence
claim, denied defendant's motion for directed verdict for
plaintiffs' contract claim, and granted plaintiffs' motion for
directed verdict for defendant's counterclaim. The jury returned
a verdict for plaintiffs and awarded $131,031.00 in damages and
judgment was entered thereon. Defendant's motion for judgment not
withstanding the verdict was denied. Defendant appeals.
Defendant argues the trial court erred by: (1) denying his
motions for directed verdict at the close of the evidence and for
judgment not withstanding the verdict for plaintiffs' contract
claim; (2) granting plaintiffs' motion for directed verdict for
defendant's counter claim; (3) accepting the jury's verdict and
entering judgment thereon; and (4) ordering a disbursement of funds
and setting costs for the verdict and judgment.
III. Standard of Review
The standard of review of directed verdict is
whether the evidence, taken in the light most
favorable to the non-moving party, is
sufficient as a matter of law to be submitted
to the jury. When determining the correctness
of the denial for directed verdict or judgment
notwithstanding the verdict, the question is
whether there is sufficient evidence to
sustain a jury verdict in the non-moving
party's favor, or to present a question for
the jury. Where the motion for judgment
notwithstanding the verdict is a motion that
judgment be entered in accordance with the
movant's earlier motion for directed verdict,this Court has required the use of the same
standard of sufficiency of evidence in
reviewing both motions.
Davis v. Dennis Lilly Co., 330 N.C. 314, 322-23, 411 S.E.2d 133,
138 (1991) (internal citations and quotations omitted).
IV. Breach of Contract
A. Directed Verdict
 Defendant argues the trial court's denial of his motion
for directed verdict at the conclusion of all the evidence is
prejudicial error. We disagree.
The party moving for a directed verdict bears a heavy burden
in North Carolina. The court should deny a motion for directed
verdict when there is more than a scintilla to support plaintiffs'
prima facie [sic] case. Edwards v. West, 128 N.C. App. 570, 573,
495 S.E.2d 920, 923 (internal quotations and citations omitted),
cert. denied, 348 N.C. 282, 501 S.E.2d 918 (1998). A prima facie
case for breach of contract is shown by the existence of a valid
contract and breach thereof. Poor v. Hill, 138 N.C. App. 19, 26,
530 S.E.2d 838, 843 (2000).
A valid contract may arise only where the parties assent and
their minds meet as to all terms. This meeting of the minds
requires an offer and acceptance of the same terms. Walker v.
Goodson Farms Inc., 90 N.C. App. 478, 486, 369 S.E.2d 122, 126
(internal citations and quotations omitted), disc. rev. denied, 323
N.C. 370, 373 S.E.2d 556 (1988). A contract may be express or
implied, executed or executory . . . . Overall Co. v. Holmes, 186
N.C. at 428, 431, 119 S.E. 817, 818 (1923). The focus of thecourt's inquiry in construing a contract . . . is the intention of
the parties, which is to be ascertained from the expressions used,
the subject matter, the end in view, the purpose sought, and the
situation of the parties at the time. Krickhan v. Krickhan, 34
N.C. App. 363, 366, 238 S.E.2d 184, 186 (1977) (internal citations
and quotations omitted).
Defendant argues insufficient evidence was presented of the
existence of a contract between him and plaintiffs to submit the
issue to the jury. Plaintiffs offered evidence that in October
2002, they met with defendant and showed him drawings of the house
they wanted defendant to build. Defendant agreed to be the general
contractor to construct plaintiffs' house, if someone else would
perform the log work. During this meeting, defendant told
plaintiffs he would build the house for $185,000.00. Plaintiffs
Defendant signed loan documents as plaintiffs' contractor and
began construction. Not every detail in the construction of the
house was specified in the plans. However, the contract need not
definitely and specifically contain in detail every fact to which
the parties are agreeing. It is sufficient if the terms can be
made certain by proof. Sides v. Tidwell, 216 N.C. 480, 483, 5
S.E.2d 316, 318 (1939). On two occasions, defendant presented
plaintiffs with a construction cost breakdown which itemized the
costs of construction. Plaintiffs also gave defendant a list of
the materials and fixtures to be used. Defendant also argues plaintiffs failed to present sufficient
evidence to submit the issue of damages to the jury. This Court
where the plaintiff's evidence establishes a
prima facie case of breach of contract, a
motion for directed verdict is properly denied
irrespective of the evidence of damage. Such
cases should be submitted to the jury because
where plaintiff proves breach of contract he
is entitled at least to nominal damages.
Liss of Carolina, Inc. v. South Hills Shopping Center, Inc., 85
N.C. App. 258, 260, 354 S.E.2d 549, 550 (1987) (internal citations
and quotations omitted). Plaintiffs presented sufficient evidence
of damages by the total amount of funds that flowed through their
construction checking account and were distributed by Mountain
Bank, and additional expenditures paid from plaintiffs' personal
checking accounts and credit cards.
Viewed in a light most favorable to plaintiffs, evidence of
the actions and conduct of plaintiffs and defendant are sufficient
evidence of the existence of a contract and damages to survive
defendant's motion for directed verdict. Davis, 330 N.C. at
322-23, 411 S.E.2d at 138. The trial court properly denied
defendant's motion for directed verdict. This assignment of error
B. Judgment Notwithstanding the Verdict
Defendant argues the trial court's denial of his motion for
judgment notwithstanding the verdict is prejudicial error. We
disagree. A motion for judgment notwithstanding the verdict is
essentially a renewal of the motion for directed verdict, and the
same standard of review applies to both motions. Zubaidi v. Earl
L. Pickett Enterprises, Inc., 164 N.C. App. 107, 119, 595 S.E.2d
190, 197, disc. rev. denied, 359 N.C. 76, 605 S.E.2d 151 (2004).
As we have held, the trial court properly denied defendant's motion
for directed verdict. The trial court also properly denied
defendant's motion for judgment notwithstanding the verdict. This
assignment of error is overruled.
V. Defendant's Counterclaim
 Defendant argues the trial court erred in granting
plaintiffs' motion for directed verdict for his counterclaim. We
Defendant filed a counterclaim seeking damages for work
performed for which he had not been paid. Defendant failed to
present any evidence to support his counterclaim at trial.
Defendant argues, there is no reason why a party should be
prohibited from being successful on a counterclaim when a Plaintiff
in his own case in chief establishes all the elements of the
Defendant carries the burden of proving his counterclaim.
Durham Lumber Co., Inc. v. Wrenn-Wilson Construction Co., 249 N.C.
680, 685, 107 S.E.2d 538, 541 (1959). In Adams v. Beasley, the
defendant seller entered into contract with the plaintiffs-buyers
to convey a certain piece of property. 174 N.C. 118, 119, 93 S.E.454, 455 (1917). The defendant conveyed the property to a third
party, making it impossible for him to perform the contract entered
into with the plaintiffs. Id. The defendant admitted the
plaintiffs' allegations and alleged a counterclaim. Id. The
defendant offered no evidence to support his counterclaim and
contended the plaintiffs carried the burden of proof. Id. The
plaintiffs argued the burden rested with the defendant. Judgment
was rendered in favor of the plaintiffs. Id. Our Supreme Court
held, the defendant was not entitled to recover upon his
counter-claim or to diminish the amount of the recovery by the
plaintiff without furnishing evidence in support of his allegation
. . . . Id.
Here, defendant presented no evidence to support the
allegations in his counterclaim. The trial court properly granted
plaintiffs' motion for directed verdict on defendant's
counterclaim. This assignment of error is overruled.
 By his third assignment of error, defendant argues the
jury's verdict in favor of plaintiffs and the trial court's
judgment accepting such verdict was erroneous. In his argument,
defendant merely states, For the reasons set forth in Argument I
and Argument II above, the verdict and the judgment accepting such
verdict was erroneous and are to be set aside and vacated.
Because defendant has set forth no reason or argument in support
of his assignment of error, it is deemed abandoned. N.C.R. App. P.
28(b)(6) (2006). In light of our holding, it is unnecessary toconsider defendant's assignment of error regarding disbursement of
funds and setting costs.
The trial court properly denied defendant's motions for
directed verdict and judgment notwithstanding the verdict.
Plaintiffs presented sufficient evidence of the existence of a
contract and damages to submit the issue to the jury.
The trial court properly granted plaintiffs' motion for
directed verdict for defendant's counterclaim. The burden of proof
rested upon defendant to prove his counterclaim. Defendant chose
not to present any evidence in support of his claim. The trial
court's order is affirmed.
Judges WYNN and HUDSON concur.
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