{ "id": 11916011, "name": "VANCE CONSTRUCTION COMPANY, INC., Plaintiff v. DUANE WHITE LAND CORPORATION, Defendant and EATON FERRY MARINA, INC., Intervenor", "name_abbreviation": "Vance Construction Co. v. Duane White Land Corp.", "decision_date": "1995-10-03", "docket_number": "No. COA94-1250", "first_page": "401", "last_page": "405", "citations": [ { "type": "official", "cite": "120 N.C. App. 401" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "15 ALR3d 899", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "368 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "90 N.C. App. 384", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524595 ], "year": 1988, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc-app/90/0384-01" ] }, { "cite": "176 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "523" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550508 ], "year": 1970, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0361-01" ] }, { "cite": "237 S.E.2d 287", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "289" } ], "opinion_index": 0 }, { "cite": "34 N.C. App. 53", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547030 ], "year": 1977, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/nc-app/34/0053-01" ] }, { "cite": "330 S.E.2d 265", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 49", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524811 ], "year": 1985, "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0049-01" ] }, { "cite": "333 S.E.2d 254", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "286" }, { "page": "256" } ], "opinion_index": 0 }, { "cite": "314 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694301 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0284-01" ] } ], "analysis": { "cardinality": 398, "char_count": 8540, "ocr_confidence": 0.734, "pagerank": { "raw": 8.822123157029675e-08, "percentile": 0.4977427255411416 }, "sha256": "48de56cf64432700987e552f54b51f4c44ebee6fc08d84c8828933cbcf4911ad", "simhash": "1:1b38522284acb4f0", "word_count": 1377 }, "last_updated": "2023-07-14T16:17:04.771230+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and McGEE concur." ], "parties": [ "VANCE CONSTRUCTION COMPANY, INC., Plaintiff v. DUANE WHITE LAND CORPORATION, Defendant and EATON FERRY MARINA, INC., Intervenor" ], "opinions": [ { "text": "WALKER, Judge.\nOn 16 February 1990, plaintiff and defendant executed a written contract whereby plaintiff agreed to construct a boat storage building on defendant\u2019s property. Plaintiff commenced construction of the building on 16 March 1990. Thereafter, the parties entered into an oral agreement for the renovation of a sales and service building also located on defendant\u2019s property.\nConstruction of the boat storage building was substantially completed on 29 June 1990 as evidenced by the issuance of a temporary occupancy certificate. The sales and service building was completed on 25 May 1990 as evidenced by an occupancy certificate. In January 1991, plaintiff performed additional work on the boat storage building.\nDuring April 1991, the parties met to negotiate the payment of monies which plaintiff contended were due for the construction work and to address certain alleged defects in the construction. On 29 April 1991, plaintiff and defendant signed a letter to their attorneys outlining the results of the negotiations. The purpose and effect of this letter is disputed by the parties.\nOn 17 May 1991, plaintiff filed a notice of claim of lien pursuant to N.C. Gen. Stat. \u00a7 44A-12. On 18 July 1991, plaintiff brought suit to enforce its lien. Defendant counterclaimed for damages due to alleged defects in the construction of the buildings. In January 1992 defendant conveyed the property to its parent corporation, Eaton Ferry Marina, Inc., which intervened seeking damages for plaintiff\u2019s alleged defective construction.\nPlaintiff subsequently filed a motion for summary judgment on all claims. The trial court entered an order finding no genuine issue of material fact as to the existence and terms of the written contract for construction of the boat storage building and defendant\u2019s breach of that contract by its failure to pay the sum due. The court found that a genuine issue did exist regarding the terms of the oral agreement for renovation of the sales and storage building and denied plaintiff\u2019s summary judgment motion as to claims stemming from the oral agreement.\nOn 5 January 1993, plaintiff amended its complaint to allege that in the 29 April 1991 letter, defendant agreed to pay plaintiff the amount of $71,943.00 plus interest and that defendant breached the agreement. Plaintiff then moved for summary judgment on this claim, which motion was denied.\nAfter a bench trial, the court entered judgment and concluded that (1) the total sum due plaintiff under the written contract was $41,863.67; (2) defendant/intervenor was entitled to receive $12,238.00 from plaintiff for defects in construction; (3) the reasonable cost of renovating the sales and service building was $40,000.00, with a balance of $15,839.05 owed to plaintiff; and (4) plaintiff had a valid lien on the property in the amount of the judgment against defendant/intervenor. The court ordered the sale of defendant/ intervenor\u2019s property to satisfy the judgment.\nIn its first assignment of error plaintiff argues that the trial court erred by denying plaintiffs motion for summary judgment on its claim that defendant breached the \u201cagreement\u201d contained in the 29 April 1991 letter. However, in Harris v. Walden, 314 N.C. 284, 333 S.E.2d 254 (1985), our Supreme Court held that the denial of a motion for summary judgment is not reviewable during appeal from a final judgment rendered in a trial on the merits. Id. at 286, 333 S.E.2d at 256. We therefore decline to address this assignment of error.\nPlaintiff next assigns as error the trial court\u2019s denial of plaintiff\u2019s motion to dismiss defendant\u2019s counterclaim at the close of defendant\u2019s evidence. Plaintiff argues that the 29 April 1991 \u201cletter agreement\u201d settled all claims between the parties and the court was therefore required to dismiss defendant\u2019s claim for damages due to defective construction.\nThe question raised by plaintiff\u2019s motion to dismiss is whether defendant\u2019s evidence, taken as true, supported findings of fact upon which the trial court as factfinder could have properly based a judgment for defendant. Woodlief v. Johnson, 75 N.C. App. 49, 53, 330 S.E.2d 265, 268 (1985). If so, the court was required to deny plaintiff\u2019s motion. Neasham v. Day, 34 N.C. App. 53, 55, 237 S.E.2d 287, 289 (1977). Defendant presented evidence that the construction completed by plaintiff was defective in several respects and that defendant was damaged as a result. Defendant also presented evidence that the 29 April 1991 letter was merely a stage in the negotiations between the parties and not a final settlement of all claims. This evidence, taken as true, supported a finding and conclusion that defendant was entitled to judgment on its counterclaim. Thus, the trial court did not err in denying plaintiff\u2019s motion to dismiss.\nWe now turn to defendant/intervenor\u2019s assignments of error challenging various findings and conclusions contained in the trial court\u2019s final judgment. Defendant/intervenor claims the court erred (1) \u201cin finding as fact that the parties\u2019 contract for the repair of the sales [and] service center was to be for time and materials, that the value of the plaintiff\u2019s time and materials was $40,000.00 and concluding as a matter of law that $15,839.05 is due the plaintiff for work done on the sales [and] service building;\u201d (2) \u201cin finding as fact that the last work performed by the plaintiff on the boat storage building was on January 18, 1992, and concluding as a matter of law that this work provided a basis for the lien filed by the plaintiff;\u201d and (3) \u201cin finding as fact that the defendant was damaged in the amount of $12,238.00 as a result of the boat storage building and concluding as a matter of law that the reasonable cost of repairing and correcting the defects is $12,238.00.\u201d\nWhere a trial court sitting without a jury makes findings of fact, the sufficiency of those facts to support the judgment may be raised on appeal. Little v. Little, 9 N.C. App. 361, 365, 176 S.E.2d 521, 523 (1970). \u201cThe standard by which [the Court of Appeals] reviewfs] the findings is whether any competent evidence exists in the record to support them.\u201d Hollerbach v. Hollerbach, 90 N.C. App. 384, 387, 368 S.E.2d 413, 415 (1988). We have carefully reviewed the evidence in the record and the arguments of the parties, and we conclude that the challenged findings and conclusions are supported by competent evidence. We find no error in the trial court\u2019s judgment.\nAffirmed.\nJudges COZORT and McGEE concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Zollicoffer & Long, by Nicholas Long, Jr., for plaintiff - appellant-appellee.", "Banzet, Banzet & Thompson, by Lewis A. Thompson, III, for defendant/intervenor-appellee-appellant." ], "corrections": "", "head_matter": "VANCE CONSTRUCTION COMPANY, INC., Plaintiff v. DUANE WHITE LAND CORPORATION, Defendant and EATON FERRY MARINA, INC., Intervenor\nNo. COA94-1250\n(Filed 3 October 1995)\n1. Appeal and Error \u00a7 118 (NCI4th)\u2014 denial of summary judgment \u2014 no review on appeal from trial on merits\nThe denial of a motion for summary judgment is not reviewable during appeal from a final judgment rendered in a trial on the merits.\nAm Jur 2d, Appellate Review \u00a7 170.\nReviewability of order denying motion for summary judgment. 15 ALR3d 899.\n2. Contracts \u00a7 144 (NCI4th)\u2014 counterclaim for defective construction \u2014 claim not dismissed \u2014 no error\nThe trial court did not err in denying plaintiffs motion to dismiss defendant\u2019s counterclaim at the close of defendant\u2019s evidence where defendant presented evidence that the construction completed by plaintiff was defective in several respects, that defendant was damaged as a result, and that a letter signed by the parties was merely a stage in the negotiations between the parties and not a final settlement.\nAm Jur 2d, Building and Constructions Contracts \u00a7 129.\n3. Appeal and Error \u00a7 486 (NCI4th)\u2014 trial by court without jury \u2014 competent evidence in record\nWhere a trial court sitting without a jury makes findings of fact, the sufficiency of those facts to support the judgment may be raised on appeal, and the standard of review on appeal is whether there is any competent evidence in the record to support the findings. In this case, there was competent evidence to support the trial court\u2019s findings with regard to the parties\u2019 contract to repair a building, the date that last work was performed, and the amount of damages.\nAm Jnr 2d, Appellate Review \u00a7 663.\nAppeal by plaintiff and defendant/intervenor from judgment entered 3 June 1994 by Judge Frank R. Brown in Warren County Superior Court. Heard in the Court of Appeals 24 August 1995.\nZollicoffer & Long, by Nicholas Long, Jr., for plaintiff - appellant-appellee.\nBanzet, Banzet & Thompson, by Lewis A. Thompson, III, for defendant/intervenor-appellee-appellant." }, "file_name": "0401-01", "first_page_order": 435, "last_page_order": 439 }