{ "id": 4159336, "name": "RONALD R. MATTHEWS and CHUCK STANLEY, Plaintiffs v. JAMES E. DAVIS, Defendant", "name_abbreviation": "Matthews v. Davis", "decision_date": "2008-08-05", "docket_number": "No. COA07-946", "first_page": "545", "last_page": "552", "citations": [ { "type": "official", "cite": "191 N.C. App. 545" } ], "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": "645 S.E.2d 810", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638630 ], "year": 2007, "pin_cites": [ { "page": "819", "parenthetical": "defendant's argument contesting a trial court's award overruled where, in a non-jury trial, the trial court was charged with determining the credibility and weight of the evidence and had competent evidence to support its award" } ], "opinion_index": 0, "case_paths": [ "/se2d/645/0810-01" ] }, { "cite": "618 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12633891 ], "year": 2005, "pin_cites": [ { "page": "826", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/618/0819-01" ] }, { "cite": "466 S.E.2d 324", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "329", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 400", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917552 ], "year": 1996, "pin_cites": [ { "page": "407-08", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0400-01" ] }, { "cite": "356 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "585", "parenthetical": "citation omitted" }, { "page": "586-87", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "319 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749057 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "546", "parenthetical": "citation omitted" }, { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0534-01" ] }, { "cite": "184 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8183788 ], "year": 2007, "pin_cites": [ { "page": "14-15", "parenthetical": "defendant's argument contesting a trial court's award overruled where, in a non-jury trial, the trial court was charged with determining the credibility and weight of the evidence and had competent evidence to support its award" } ], "opinion_index": 0, "case_paths": [ "/nc-app/184/0001-01" ] }, { "cite": "489 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "895" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 327", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11795407 ], "year": 1997, "pin_cites": [ { "page": "331" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0327-01" ] }, { "cite": "160 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "481", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "273 N.C. 490", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575669 ], "year": 1968, "pin_cites": [ { "page": "497", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0490-01" ] }, { "cite": "568 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "669", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 687", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9251282 ], "year": 2002, "pin_cites": [ { "page": "692", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0687-01" ] }, { "cite": "331 S.E.2d 707", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "711", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526578 ], "year": 1985, "pin_cites": [ { "page": "65", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0059-01" ] }, { "cite": "173 N.C. App. 237", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8353302 ], "year": 2005, "pin_cites": [ { "page": "247", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/173/0237-01" ] }, { "cite": "336 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "148", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 792", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525427 ], "year": 1985, "pin_cites": [ { "page": "794", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0792-01" ] }, { "cite": "604 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2004, "pin_cites": [ { "page": "332", "parenthetical": "citation omitted" }, { "page": "332", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "167 N.C. App. 28", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8410657 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "34", "parenthetical": "citation omitted" }, { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc-app/167/0028-01" ] } ], "analysis": { "cardinality": 805, "char_count": 16766, "ocr_confidence": 0.733, "pagerank": { "raw": 9.377174822203975e-08, "percentile": 0.5150798367009042 }, "sha256": "17b13b7b1de92c7364c8bd2d51154aa435823a62264798f6c08e21af958236eb", "simhash": "1:afabd40b32ae80d4", "word_count": 2772 }, "last_updated": "2023-07-14T16:44:10.260573+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUNTER and JACKSON concur." ], "parties": [ "RONALD R. MATTHEWS and CHUCK STANLEY, Plaintiffs v. JAMES E. DAVIS, Defendant" ], "opinions": [ { "text": "BRYANT, Judge.\nDefendant James E. Davis appeals from an order awarding damages to plaintiff Chuck Stanley in the amount of $9,243.75, with interests and costs. We affirm the award.\nPlaintiffs Ronald Matthews and Chuck Stanley owned adjacent lots in Stella, North Carolina along the White Oak River. In the early summer of the year 2000, Davis met with plaintiffs and as a result of that meeting entered into an oral contract for the construction of a sea wall. The cost of this sea wall to each plaintiff was $9,243.75.\nThe sea wall was a \u201crip rap\u201d construction \u2014 large stones laid over a small slope extending out approximately 12 feet and standing approximately 8 feet high. Beneath the layer of stone lay a woven filter cloth, and beneath the cloth was sandy soil. The sea wall construction was completed and paid for by 6 November 2000.\nAlthough plaintiffs lots adjoined, the grading and landscaping of their respective properties was \u201csignificantly different.\u201d The Matthews property had \u201csock tile\u201d (a six inch, corrugated black plastic pipe with a nylon sock) in place to assist in draining. The Stanley property did not. The Matthews property was graded to a \u201cshallower or lower grade\u201d with landscape features such as burlap laid over planting beds to enable roots to take hold, rye grass and a row of bushes. The Stanley property did not have the same grade or the landscaping.\nBy early to mid December 2000, approximately a month after completion of the sea wall, erosion was noted as a result of soil washing from behind the sea wall, leaving large holes on the surface of the Stanley lot. There was some erosion of the Matthews property during this same period but significantly less than the Stanley property. Plaintiffs brought suit for breach of contract, breach of express warranty, breach of implied warranty of fitness for a particular purpose, and unfair and deceptive trade practices.\nAt trial, plaintiffs submitted the testimony of John Louis Eddy, a professional consulting engineer, who testified as an expert in the field of geotechnical and water resource engineering. In his initial observation of the plaintiffs\u2019 properties, Eddy testified that \u201c[tjhere was some loss of soil from the slope, movement of rip-rap erosion at the top of the drain. . . . There were holes in the fabric and obviously, the fabric was not retaining the soil. . . .\u201d\nThe fabric used in the sea wall was woven. Eddy testified that \u201cthe fabric may not have been the appropriate fabric for use at the site. The soil particles[, relatively fine grain silty sand,] are fine enough that they can go through the woven fabric . . . .\u201d The mechanism for that movement being the flow of water.\nEddy also observed \u201cthat the fabric had been placed with the machine direction parallel to the slope so that you have horizontal joints in the fabric. So when there\u2019s tension in that fabric, it tends to pull apart and go down slope leaving openings.\u201d The standard way to install the fabric is vertically, or perpendicular to the shoreline, rather than horizontally. In his opinion the slope of the rip-rap wall was also too steep to remain stable. \u201cIt wouldn\u2019t take much to upset [the rip-rap] and cause [the stones] to move down the slope.\u201d And, as there was no cushion layer of small stones between the fabric and the large stones laid on it, the result was that jagged holes appeared in the fabric from the tension created by the rip-rap. According to Eddy the purpose of the fabric under the rip-rap in the sea wall was \u201cto serve as a separation layer between the rip-rap and the soil and retain the soil. . . . [I]f you punch holes in the fabric, you\u2019re going to loose [sic] soil through those holes where it was intended to hold it in place.\u201d\nEddy testified that \u201c[he] reached the conclusion that there had not been adequate surface and sub-surface drainage installed. A rip-rap blanket like that is routinely installed to handle sub-surface drainage issues, but obviously with the problems with the fabric it couldn\u2019t perform that function.\u201d When asked whether he formed an opinion satisfactory to himself to a reasonable degree of engineering certainty as to the cause of the serious distress observed in the rip-rap wall on plaintiffs\u2019 properties, Eddy responded, \u201cthat there were problems with the design and construction of the rip-rap wall, basically that the proper fabric was not used.\u201d When asked whether he formed an opinion satisfactory to himself to a reasonable degree of engineering certainty as to whether the rip-rap wall appeared to be capable of performing the function for which it was intended, Eddy responded, \u201c[t]hat it was not.\u201d\nFurthermore, Eddy testified that the rip-rap wall \u201cdoes not meet the standard of first-rate workmanship ....\u201d \u201c[T]he rip-rap is in a marginally stable condition borderline incipient failure . . . [meaning] it wouldn\u2019t take much for it to come down.\u201d\nAt the conclusion of the plaintiffs\u2019 evidence, the trial court dismissed all but the claims for breach of express warranty and general breach of contract. At the conclusion of the evidence, the trial court found and concluded that the construction of the sea wall was in accordance with Davis\u2019s design and such was not constructed in a workmanlike manner. The orientation of the filter fabric, to be laid in a workmanlike manner, should have been perpendicular to the shoreline rather than parallel, and holes in the fabric, created by stakes driven through it to hold the fabric in place during construction, ultimately allowed soil and sand to pass through the fabric and erode plaintiffs\u2019 lots. The trial court denied Matthews\u2019 claim despite the conclusion that the sea wall was constructed in less than a workmanlike manner on the basis that Matthews evidenced little to no damage to his property. The trial court awarded Stanley $9,243.75. Davis appealed.\nDavis presents four questions on appeal: whether the trial court erred in (I) denying Davis\u2019s motion to dismiss at the end of plaintiff\u2019s evidence; (II) awarding damages to Stanley for poor construction of the sea wall; (III) entering judgment for Stanley; and (IV) awarding Stanley $9,243.74.\nWe note questions II and III are not supported by argument or case law, and according to our rules of appellate procedure those assignments of error are deemed abandoned. See N.C. R. App. P 28(b)(6) (2007) (\u201cAssignments of error not set out in the appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d).\n/\nDavis argues the trial court erred in denying his motion, pursuant to Civil Procedure Rule 41(b), to dismiss plaintiffs\u2019 breach of contract claim. Davis argues there was no showing the sea wall caused any damage or harm to the property of either plaintiff, and he invites this Court to reexamine the facts.\nUnder the North Carolina Rules of Civil Procedure, Rule 41(b)\n[ajfter the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief.\nN.C.R. Civ. P. 41(b) (2007). When a motion to dismiss pursuant to Rule 41(b) is made, \u201cthe judge becomes both the judge and the jury; he must consider and weigh all competent evidence before him; and he passes upon the credibility of the witnesses and the weight to be given their testimony.\u201d Miles v. Carolina Forest Ass\u2019n, 167 N.C. App. 28, 34, 604 S.E.2d 327, 332 (2004) (citation omitted). \u201cThe trial judge may weigh the evidence, find the facts and sustain defendant\u2019s Rule 41(b) motion at the conclusion of plaintiff\u2019s evidence even though plaintiff has made out a prima facie case which would have precluded a directed verdict for defendant in a jury trial.\u201d Childers v. Hayes, 77 N.C. App. 792, 794, 336 S.E.2d 146, 148 (1985) (citation omitted). \u201cDismissal under Rule 41(b) is left to the sound discretion of the trial court and will not be disturbed on appeal in the absence of a showing of abuse of discretion.\u201d In re Pedestrian Walkway Failure, 173 N.C. App. 237, 247, 618 S.E.2d 819, 826 (2005) (citation omitted).\n\u201cAs a fact-finder, however, the trial judge must find the facts on all issues raised by the pleadings, and state his conclusions of law based thereon, in order that an appellate court may determine from the record the basis of his decision.\u201d McKnight v. Cagle, 76 N.C. App. 59, 65, 331 S.E.2d 707, 711 (1985) (citations omitted). Still, where a party on appeal makes only a general exception to the denial of a Rule 41(b) motion and fails to direct the attention of this Court to any contested findings of fact or supporting evidence, that party does not bring up for review the findings of fact or the evidence on which those findings are based. Miles, 167 N.C. App. at 35, 604 S.E.2d at 332 (citations omitted). Where the trial court\u2019s findings of fact are not brought up for our review, \u201cthe appeal presents the question of whether the findings support the court\u2019s inferences, conclusions of law, judgment, and whether error appears on the face of the record.\u201d Id.\n\u201cTo state a claim for breach of contract, the complaint must allege that a valid contract existed between the parties, that defendant breached the terms thereof, the facts constituting the breach, and that damages resulted from such breach.\u201d Jackson v. Associated Scaffolders & Equip. Co., 152 N.C. App. 687, 692, 568 S.E.2d 666, 669 (2002) (citation omitted). \u201c[W]here the cause of action is a failure to construct in a workmanlike manner . . ., plaintiff[s\u2019] pleading should allege wherein the workmanship was faulty . . . .\u201d Cantrell v. Woodhill Enterprises, Inc., 273 N.C. 490, 497, 160 S.E.2d 476, 481 (1968) (citation omitted).\nHere, the parties do not dispute the existence of a valid contract to construct a sea wall. Plaintiffs brought an action for breach of contract alleging \u201cthe Defendant failed to construct the rip-rap wall in a workmanlike and satisfactory manner which has caused distress, erosion and subsidence problems . . . .\u201d\nAt the conclusion of the presentation of the evidence, the trial court made the following findings:\n13. In the construction of the sea wall, driving the stakes through the fabric material into the sloping soil, and then placing the heavier stones upon the fabric material, as well as the action of the waves and heavy rain upon the fabric cloth with holes punched in it for these stakes, will and did allow soil to pass through the sea wall, and washing and erosion to occur.\n14. The fabric on the sea wall, rather than being laid parallel to the White Oak River, should have been laid perpendicular to the shore line, or vertically, to be laid in a workmanlike manner. Further driving the stakes through the fabric constituted construction in less than a workmanlike manner.\nBased on these findings the trial court concluded\n[t]he actual construction of this sea wall in accordance with the design by the defendant Davis was not in a workmanlike manner. The stakes driven through the sea wall, particularly through the filter fabric, and the horizontal placement of that filter fabric, ultimately allowed soil and sand to pass through the fabric and erosion to occur.\nWe hold that the trial court\u2019s findings support its conclusion that defendant\u2019s construction of the sea wall was constructed in an unworkmanlike manner, which allowed soil and sand to pass through the fabric and erosion of plaintiff Stanley\u2019s land to occur. Therefore, this assignment of error is overruled.\nIV\nDefendant next argues the trial court erred in awarding Plaintiff Stanley damages of $9,243.75. We disagree.\n\u201cThe trial court\u2019s authority to award damages in a breach of contract action is well established.\u201d Southern Bldg. Maintenance v. Osborne, 127 N.C. App. 327, 331, 489 S.E.2d 892, 895 (1997); see also Terry\u2019s Floor Fashions, Inc. v. Crown General Contractors, Inc., 184 N.C. App. 1, 14-15, 645 S.E.2d 810, 819 (2007) (defendant\u2019s argument contesting a trial court\u2019s award overruled where, in a non-jury trial, the trial court was charged with determining the credibility and weight of the evidence and had competent evidence to support its award). The party claiming these damages bears the burden of proving its losses with reasonable certainty. Olivetti Corp. v. Ames Business Systems, Inc., 319 N.C. 534, 546, 356 S.E.2d 578, 585 (1987) (citation omitted). While the reasonable certainty standard requires something more than \u201chypothetical or speculative forecasts,\u201d it does not require absolute certainty. McNamara v. Wilmington Mall Realty Corp., 121 N.C. App. 400, 407-08, 466 S.E.2d 324, 329 (1996) (citation omitted).\nAnd, \u201c[w]hile the amount of damages is ordinarily a question of fact, the proper standard with which to measure those damages is a question of law. Such questions are, therefore, fully reviewable by this Court.\u201d Olivetti, 319 N.C. at 548, 356 S.E.2d at 586-87 (citations omitted).\nPlaintiffs presented testimony from expert witness Engineer Eddy regarding the cost of stabilizing the sea wall. Eddy testified there was more than one repair option, but regardless of what option plaintiffs chose, the underlying fabric in the sea wall would need to be removed because it was inadequate to retain the soil while allowing any water coming off plaintiffs\u2019 properties to pass through.\nEddy testified that in his eighteen year practice he has designed stabilization projects and solicited bids from contractors to carry out the construction. When asked about his familiarity with construction costs for a repair project of the plaintiffs\u2019 lots, Eddy responded \u201c[he] [has] construction projects all over the state where [he] has sought bids or negotiated contracts with contractors and [has] been responsible for helping owners sort out among the bids and selecting contractors to do work of this nature.\u201d And, in his opinion, the cost to repair plaintiffs\u2019 lots is $20,000 per lot. Eddy testified that of the $20,000, approximately $5,000 would be for moving soil while the repair cost remainder accounted for time and materials.\nThe trial court found the estimated cost of repair to bring the sea wall to a properly constructed and functioning sea wall would be $20,000 per lot, including $5,000 for additional soil grading between the plaintiffs\u2019 lots. But, the original cost of the sea wall to each plaintiff was $9,243.75. From this the trial court concluded that \u201cin considering the measure of damages in this matter that the cost of repair of $20,000 per lot would be inappropriate in that it includes design, grading and work for which this defendant and these plaintiffs did not originally contract.\u201d The trial court concluded \u201cthe proper award of damages to plaintiff Stanley should be $9243.75[,]\u201d the amount Stanley contracted to build the sea wall.\nWe note that as this was a non-jury trial the trial court was charged with determining the credibility and weight of the evidence presented, and we hold there was competent evidence admitted to support a $9,243.75 award to Stanley. Accordingly, this assignment of error is overruled.\nAffirmed.\nJudges HUNTER and JACKSON concur.", "type": "majority", "author": "BRYANT, Judge." } ], "attorneys": [ "Lanier, Fountain & Ceruzzi, by John W. Ceruzzi, for plaintiffappellee.", "Jeffrey S. Miller for defendant-appellant." ], "corrections": "", "head_matter": "RONALD R. MATTHEWS and CHUCK STANLEY, Plaintiffs v. JAMES E. DAVIS, Defendant\nNo. COA07-946\n(Filed 5 August 2008)\n1. Appeal and Error\u2014 preservation of issues \u2014 assignments of error \u2014 supporting argument or case law required\nAssignments of error which were not supported by argument or case law were deemed abandoned.\n2. Construction Claims\u2014 breach \u2014 unworkmanlike construction of sea wall \u2014 motion to dismiss denied\nThe trial court did not err by denying defendant\u2019s motion to dismiss a breach of contract claim which arose from the construction of a rip rap sea wall and subsequent erosion. The court\u2019s findings support its conclusion that the sea wall was constructed in an unworkmanlike manner so that soil and,sand could pass through the fabric under the rip rap and erosion could occur.\n3. Damages and Remedies\u2014 repair of sea wall \u2014 conflicting evidence \u2014 nonjury trial\nThe trial court did not err in a nonjury trial in its award of damages for repair of a sea wall built in an unworkmanlike manner where there was evidence to support the damages awarded, even though the award was less than the cost of repair estimated by plaintiffs\u2019 expert. The credibility and weight of the evidence was for the court.\nAppeal by defendant from judgment entered 22 January 2007 by the Honorable D. Jack Hooks, Jr..in Onslow County Superior Court. Heard in the Court of Appeals 20 February 2007.\nLanier, Fountain & Ceruzzi, by John W. Ceruzzi, for plaintiffappellee.\nJeffrey S. Miller for defendant-appellant." }, "file_name": "0545-01", "first_page_order": 577, "last_page_order": 584 }