{ "id": 11439349, "name": "JOSEPH CLIFF LASSITER and wife, EVA C. LASSITER, Plaintiff-Appellants v. RONALD JEFFREY CECIL, Individually, and CASTLE CONSTRUCTION COMPANY, INC., Defendant-Appellees", "name_abbreviation": "Lassiter v. Cecil", "decision_date": "2001-08-21", "docket_number": "No. COA00-607", "first_page": "679", "last_page": "685", "citations": [ { "type": "official", "cite": "145 N.C. App. 679" } ], "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": "526 S.E.2d 463", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "466", "parenthetical": "\"[0]n appeal, the appellate courts are bound by the trial court's findings [of fact] if competent evidence in the record supports these findings.\"" } ], "opinion_index": 0 }, { "cite": "351 N.C. 424", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155922 ], "year": 2000, "pin_cites": [ { "page": "428", "parenthetical": "\"[0]n appeal, the appellate courts are bound by the trial court's findings [of fact] if competent evidence in the record supports these findings.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0424-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-138", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "403 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "472" } ], "opinion_index": 0 }, { "cite": "328 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541726 ], "year": 1991, "pin_cites": [ { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0689-01" ] }, { "cite": "395 S.E.2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "114" } ], "opinion_index": 0 }, { "cite": "327 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497334 ], "year": 1990, "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0412-01" ] }, { "cite": "366 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "366 S.E.2d 862", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 744", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2570853, 2570349, 2567695, 2568946, 2569780 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0744-04", "/nc/321/0744-03", "/nc/321/0744-02", "/nc/321/0744-01", "/nc/321/0744-05" ] }, { "cite": "363 S.E.2d 367", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "375" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 315", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358177 ], "year": 1988, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0315-01" ] }, { "cite": "398 S.E.2d 586", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "600", "parenthetical": "\"A corporate officer can be held personally liable for torts in which he actively participates.\"" } ], "opinion_index": 0 }, { "cite": "327 N.C. 491", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496145 ], "year": 1990, "pin_cites": [ { "page": "518", "parenthetical": "\"A corporate officer can be held personally liable for torts in which he actively participates.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0491-01" ] }, { "cite": "240 S.E.2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "350" }, { "page": "350-51" } ], "opinion_index": 0 }, { "cite": "294 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570898 ], "year": 1978, "pin_cites": [ { "page": "81" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0073-01" ] }, { "cite": "150 S.E.2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "77", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "268 N.C. 110", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560298 ], "year": 1966, "pin_cites": [ { "page": "112", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0110-01" ] }, { "cite": "531 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "479", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080078 ], "year": 2000, "pin_cites": [ { "page": "429", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0425-01" ] }, { "cite": "495 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "187", "parenthetical": "\"The motion to add ... a party was not part of the pleadings[.]\"" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 528", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11655913 ], "year": 1998, "pin_cites": [ { "page": "530", "parenthetical": "\"The motion to add ... a party was not part of the pleadings[.]\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0528-01" ] }, { "cite": "364 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "384", "parenthetical": "\"Under the notice theory of pleading, a statement of a claim is adequate if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand its nature and basis and to file a responsive pleading.\"" } ], "opinion_index": 0 }, { "cite": "321 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568970 ], "year": 1988, "pin_cites": [ { "page": "442", "parenthetical": "\"Under the notice theory of pleading, a statement of a claim is adequate if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand its nature and basis and to file a responsive pleading.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0435-01" ] }, { "cite": "496 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "646" }, { "page": "583", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "347 N.C. 638", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551095 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0638-01" ] } ], "analysis": { "cardinality": 648, "char_count": 14731, "ocr_confidence": 0.75, "pagerank": { "raw": 2.530353402810753e-07, "percentile": 0.8124189865895657 }, "sha256": "9abf0f848080fac8f2d3f8639678a23a85ff4d335ee4d20d98e94928961f23df", "simhash": "1:676fe1297b6f8d1c", "word_count": 2295 }, "last_updated": "2023-07-14T19:02:14.256422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and CAMPBELL concur." ], "parties": [ "JOSEPH CLIFF LASSITER and wife, EVA C. LASSITER, Plaintiff-Appellants v. RONALD JEFFREY CECIL, Individually, and CASTLE CONSTRUCTION COMPANY, INC., Defendant-Appellees" ], "opinions": [ { "text": "McGEE, Judge.\nPlaintiffs signed a fee construction contract with defendant Castle Construction Company, Inc. (Castle) on 10 June 1996 to build a house on plaintiffs\u2019 land. Defendant Ronald Jeffrey Cecil (Cecil) signed the contract as president of Castle. The contract provided that Cecil, as Castle\u2019s representative, would personally oversee and provide general supervision in connection with the construction project. Construction began immediately, and plaintiffs paid defendants every month as billed. Then, in December 1996, plaintiffs withheld several thousand dollars from their payment because of obvious defects in the construction of the house. Defendants demanded the remainder of the payment and, when plaintiffs refused to pay, defendants ceased all work on the house.\nPlaintiffs filed their complaint on 20 February 1997, alleging that Castle had breached the fee construction contract through numerous faults and defects in the construction, and alleging that Castle had been negligent in constructing the house. Plaintiffs also sought attorney\u2019s fees and costs as provided for in the fee construction contract. Plaintiffs amended their complaint with leave of the trial court on 18 August 1998, adding Cecil to their claim of negligence.\nAt trial, plaintiffs sought to introduce evidence of plaintiff Eva C. Lassiter\u2019s (Eva\u2019s) emotional distress arising from the difficulties in constructing the house. The trial court denied plaintiffs\u2019 request, holding that plaintiffs had not adequately pled a claim for emotional distress.\nAt the close of plaintiffs\u2019 evidence, defendants moved for directed verdicts on all claims. The trial court granted defendants\u2019 motion for a directed verdict on the claim of negligence against Castle, but denied defendants\u2019 motions on the remaining claims of breach of contract against Castle and negligence against Cecil.\nDuring defendants\u2019 presentation of evidence, Cecil testified that the fee construction contract was a contract between plaintiffs and Castle, and that Cecil was involved only in his capacity as president of Castle. Cecil acknowledged, however, that he had been the construction superintendent for plaintiffs\u2019 house, and that he also had done some work as a laborer for Castle\u2019s framing subcontractor.\nAt the close of all the evidence, the jury returned verdicts finding Castle liable for breach of contract and finding Cecil liable for negligence. Upon defendants\u2019 motion, the trial court granted judgment notwithstanding the verdict on the issue of Cecil\u2019s negligence.\nPlaintiffs waived their right to jury trial on the issue of reasonable attorney\u2019s fees and expenses under the fee construction contract. The trial court accordingly awarded plaintiffs $22,794.75 in attorney\u2019s fees and $16,740.06 in expert witness fees and deposition costs, as well as the filing fees and service fees for all subpoenas issued by plaintiffs.\nPlaintiffs appeal, assigning error to the trial court\u2019s (1) exclusion of evidence of Eva\u2019s emotional distress, (2) grant of judgment notwithstanding the verdict on the issue of Cecil\u2019s negligence, and (3) award to plaintiffs of only $16,740.06 in costs.\nI.\nPlaintiffs assert that they were entitled to present evidence of Eva\u2019s emotional distress as a component of damages both for breach of contract and for negligence. However, neither plaintiffs\u2019 original complaint, nor their amended complaint, includes any mention of emotional distress or of personal injury of any type.\nIn McAllister v. Ha, 347 N.C. 638, 496 S.E.2d 577 (1998), our Supreme Court indicated that a complaint alleging negligent infliction of emotional distress must include an assertion of injury due to emotional distress \u201c \u2018sufficient to give . . . defendant notice of the nature and basis of plaintiffs\u2019 claim so as to enable him to answer and prepare for trial.\u2019 \u201d Id. at 646, 496 S.E.2d at 583 (citation omitted). By failing to make any reference to emotional distress in their claim for recovery for negligence, plaintiffs have failed to give defendants sufficient notice of such a claim for damages. We hold that the same standard applies with respect to damages for emotional distress due to breach of contract.\nPlaintiffs suggest that defendants received adequate notice of plaintiffs\u2019 claim for damages due to emotional distress, insofar as plaintiffs\u2019 motion for leave to amend their initial complaint includes an assertion that plaintiffs suffered \u201cpersonal injuries\u201d as a result of Cecil\u2019s negligent acts. However, once the trial court had entered its order allowing amendment, plaintiffs failed to allege emotional distress or personal injury in their actual amendment to the complaint. We conclude that, regardless of whether a bare assertion of \u201cpersonal injuries\u201d would be adequate under McAllister to support a claim for damages due to emotional distress, plaintiffs\u2019 motion for leave to amend their complaint was not a pleading and was therefore inadequate to provide the requisite notice to defendants. See Pyco Supply Co., Inc. v. American Centennial Ins. Co., 321 N.C. 435, 442, 364 S.E.2d 380, 384 (1988) (\u201cUnder the notice theory of pleading, a statement of a claim is adequate if it gives sufficient notice of the events or transactions which produced the claim to enable the adverse party to understand its nature and basis and to file a responsive pleading.\u201d); Jacobs v. Royal Ins. Co. of America, 128 N.C. App. 528, 530, 495 S.E.2d 185, 187 (1998) (\u201cThe motion to add ... a party was not part of the pleadings[.]\u201d); N.C. Gen. Stat. \u00a7 1A-1, Rule 7 (1999).\nBecause plaintiffs failed to plead a claim for damages for emotional distress, the trial court did not err in excluding plaintiffs\u2019 evidence of Eva\u2019s emotional distress.\nII.\nPlaintiffs next assert that the trial court erred in granting judgment notwithstanding the verdict on plaintiffs\u2019 claim of negligence against Cecil.\n[T]he standard of review for a judgment notwithstanding the verdict is . . . whether, upon examination of all the evidence in the light most favorable to the nonmoving party, and that party being given the benefit of every reasonable inference drawn therefrom, the evidence is sufficient to be submitted to the jury.\nFulk v. Piedmont Music Ctr., 138 N.C. App. 425, 429, 531 S.E.2d 476, 479 (2000) (citation omitted). We therefore consider whether sufficient evidence was presented to the jury to find Cecil negligent.\n\u201cNegligence is the failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them.\u201d Moore v. Moore, 268 N.C. 110, 112, 150 S.E.2d 75, 77 (1966) (citation omitted). Plaintiffs argue that Castle committed negligence through breach of its legal duties under the fee construction contract. \u201cOrdinarily, a breach of contract does not give rise to a tort action by the promisee against the promisor.\u201d Ports Authority v. Roofing Co., 294 N.C. 73, 81, 240 S.E.2d 345, 350 (1978). However, plaintiffs assert that Castle\u2019s breach falls within one of the exceptions described in Ports Authority. See id. at 82, 240 S.E.2d at 350-51. Moreover, plaintiffs contend that Cecil, as a corporate officer who actively participated in Castle\u2019s tort, is liable for Castle\u2019s tort under Wilson v. McLeod Oil Co., 327 N.C. 491, 518, 398 S.E.2d 586, 600 (1990) (\u201cA corporate officer can be held personally liable for torts in which he actively participates.\u201d).\nHowever, the trial court held that Castle\u2019s contractual duty did not create an action in tort under Ports Authority when it granted defendants\u2019 directed verdict on Castle\u2019s negligence liability. Because plaintiffs do not assign error to that directed verdict, the issue of Castle\u2019s negligence has not been challenged on appeal. See N.C.R. App. P. 10(a). It follows that, insofar as the trial court established that Castle committed no tort, there is no corporate tort for which Cecil could be held liable under Wilson.\nIn the alternative, plaintiffs assert that Cecil is personally liable for his negligent acts as construction supervisor and as a framing laborer, under the doctrine of per se negligence for violations of the North Carolina Building Code. \u201c[T]he Code imposes liability on any person who constructs, supervises construction, or designs a building or alteration thereto, and violates the Code such that the violation proximately causes injury or damage.\u201d Olympic Products Co. v. Roof Systems, Inc., 88 N.C. App. 315, 329, 363 S.E.2d 367, 375, disc. review denied, 321 N.C. 744, 366 S.E.2d 862, 366 S.E.2d 863 (1988). However, a violation of the North Carolina Building Code constitutes negligence per se because the Code is a statute to promote the safety of others. See Lamm v. Bissette Realty, 327 N.C. 412, 415, 395 S.E.2d 112, 114 (1990). To benefit from negligence per se for a violation of the Code, plaintiffs must first demonstrate that they fall \u201cwithin the class intended to be protected by the statute[][.]\u201d Lynn v. Overlook Development, 328 N.C. 689, 695, 403 S.E.2d 469, 472 (1991). We hold that, insofar as the Code is intended \u201cfor the protection of the occupants of the building or structure, its neighbors, and members of the public at largef,]\u201d N.C. Gen. Stat. \u00a7 143-138(b) (1999), plaintiffs do not fall within that class. The house was never finished and certified for occupancy, and plaintiffs do not assert that they were damaged as members of the general public. We conclude that, regardless of whether Cecil could otherwise be held personally liable for violations of the North Carolina Building Code under Olympic Products, plaintiffs were not owed a duty under the Code and therefore could not bring such a claim.\nBecause plaintiffs failed to present evidence to the jury that Cecil negligently breached a duty he owed, we find no error in the trial court\u2019s grant of judgment notwithstanding the verdict on the issue of . Cecil\u2019s negligence.\nIII.\nFinally, plaintiffs assert that the trial court did not adequately award plaintiffs their costs, as provided for in the fee construction contract. The contract provides:\nIf either party to this Contract shall seek to enforce this Contract, or any duties or obligations arising out of this Contract, against the other party to this Contract, by legal or equitable proceedings, then the prevailing party in such proceedings shall receive, in addition to all other rights and remedies to which such party is entitled, such party\u2019s reasonable costs and expenses incurred in such proceedings, including reasonable attorney\u2019s fees.\nDuring trial, plaintiffs waived their right to have the issue of reasonable costs heard by the jury. At the close of the trial, plaintiffs provided the trial court with a list of their litigation expenses. In addition to attorney\u2019s fees, the trial court awarded plaintiffs their deposition costs and expert witness fees, but declined to compensate plaintiffs for the cost of photographs, photocopies, several years of property taxes on the uncompleted house, and other miscellaneous expenses totaling approximately $6,000. Plaintiffs assert that, because defendants did not explicitly challenge their list of expenses, the trial court was required under the fee construction contract to award plaintiffs everything included on their list.\nHowever, while defendants did not object to plaintiffs\u2019 list of expenses, neither did they stipulate to it. Plaintiffs simply presented the trial court with their list of expenses, divided into categories. We hold that the trial court\u2019s finding of fact that plaintiffs\u2019 deposition costs and expert witness fees were plaintiffs\u2019 \u201creasonable costs and expenses\u201d incurred in the proceeding is supported by competent evidence. See Fortune Ins. Co. v. Owens, 351 N.C. 424, 428, 526 S.E.2d 463, 466 (2000) (\u201c[0]n appeal, the appellate courts are bound by the trial court\u2019s findings [of fact] if competent evidence in the record supports these findings.\u201d). We therefore find no error in the trial court\u2019s award of costs to plaintiffs.\nWe affirm the 6 December 1999 judgment of the trial court.\nAffirmed.\nJudges GREENE and CAMPBELL concur.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Smith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith and Seth R. Cohen, for plaintiff-appellants.", "Burton & Sue, L.L.P., by Gary K. Sue, Walter K. Burton and James D. Secor, III, for defendant-appellees." ], "corrections": "", "head_matter": "JOSEPH CLIFF LASSITER and wife, EVA C. LASSITER, Plaintiff-Appellants v. RONALD JEFFREY CECIL, Individually, and CASTLE CONSTRUCTION COMPANY, INC., Defendant-Appellees\nNo. COA00-607\n(Filed 21 August 2001)\n1. Emotional Distress\u2014 fee construction contract \u2014 exclusion of evidence\nThe trial court did not err in an action arising out of a fee construction contract to build a house by excluding evidence of plaintiff wife\u2019s emotional distress as a component of damages for both breach of contract and for negligence, because: (1) neither plaintiffs\u2019 original complaint nor their amended complaint includes any mention of emotional distress or of personal injury of any type; and (2) plaintiffs\u2019 motion for leave to amend their complaint was not a pleading and was therefore inadequate to provide the requisite notice to defendants.\n2. Negligence\u2014 fee construction contract \u2014 judgment notwithstanding the verdict\nThe trial court did not err in an action arising out of a fee construction contract to build a house by granting judgment notwithstanding the verdict on the issue of defendant corporate officer\u2019s negligence, because: (1) there is no corporate tort for which defendant corporate officer could be held liable when the trial court established that defendant corporation committed no tort; and (2) plaintiffs were not owed a duty under the North Carolina Building Code and therefore could not bring a negligence per se claim against defendant corporate officer.\n3. Costs\u2014 deposition costs \u2014 expert witness fees \u2014 photographs \u2014 photocopies\nThe trial court did not err in an action arising out of a fee construction contract to build a house by awarding plaintiffs $16,740.06 for deposition costs and expert witness fees but declining to compensate plaintiffs for the cost of photographs, photocopies, several years of property taxes on the uncompleted house, and other miscellaneous expenses totaling approximately $6,000.00, because: (1) although defendants did not object to plaintiffs\u2019 list of expenses, neither did they stipulate to it; and (2) the trial court\u2019s finding of fact that plaintiffs\u2019 deposition costs and expert witness fees were plaintiffs\u2019 reasonable costs and expenses incurred in the proceeding is supported by competent evidence.\nAppeal by plaintiffs from judgment entered 6 December 1999 by Judge Sanford L. Steelman, Jr. in Superior Court, Davidson County. Heard in the Court of Appeals 27 March 2001.\nSmith, James, Rowlett & Cohen, L.L.P., by Norman B. Smith and Seth R. Cohen, for plaintiff-appellants.\nBurton & Sue, L.L.P., by Gary K. Sue, Walter K. Burton and James D. Secor, III, for defendant-appellees." }, "file_name": "0679-01", "first_page_order": 709, "last_page_order": 715 }