{ "id": 4161381, "name": "BILL O. WEEKS and TRACY WEEKS, Plaintiffs v. SELECT HOMES, INC., Defendant", "name_abbreviation": "Weeks v. Select Homes, Inc.", "decision_date": "2008-11-18", "docket_number": "No. COA08-480", "first_page": "725", "last_page": "732", "citations": [ { "type": "official", "cite": "193 N.C. App. 725" } ], "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": "628 S.E.2d 761", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635611, 12635612 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/se2d/628/0761-01", "/se2d/628/0761-02" ] }, { "cite": "623 S.E.2d 281", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634600 ], "year": 2005, "pin_cites": [ { "page": "284", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/623/0281-01" ] }, { "cite": "657 S.E.2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640450 ], "weight": 6, "year": 2008, "pin_cites": [ { "page": "363" }, { "page": "366" }, { "page": "366-67", "parenthetical": "emphasis supplied" }, { "page": "366" }, { "page": "367" }, { "page": "366", "parenthetical": "\"[0]nly in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate.\" (Citation omitted)" } ], "opinion_index": 0, "case_paths": [ "/se2d/657/0361-01" ] }, { "cite": "209 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1974, "pin_cites": [ { "page": "783", "parenthetical": "citation omitted" }, { "page": "782", "parenthetical": "internal citations omitted" }, { "page": "782" }, { "page": "782" } ], "opinion_index": 0 }, { "cite": "286 N.C. 51", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563350 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "62", "parenthetical": "citation omitted" }, { "page": "61" }, { "page": "61" } ], "opinion_index": 0, "case_paths": [ "/nc/286/0051-01" ] }, { "cite": "360 N.C. 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788627 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/nc/360/0472-01" ] }, { "cite": "175 N.C. App. 22", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8349702 ], "year": 2005, "pin_cites": [ { "page": "26", "parenthetical": "internal citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/175/0022-01" ] }, { "cite": "362 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4149183 ], "weight": 3, "year": 2008, "pin_cites": [ { "page": "194" }, { "page": "199" }, { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/nc/362/0191-01" ] } ], "analysis": { "cardinality": 694, "char_count": 16622, "ocr_confidence": 0.741, "pagerank": { "raw": 1.035795173335366e-07, "percentile": 0.5493542287600551 }, "sha256": "0189d1707c03be6f0b472274d651e389fa3441f5ce974a5afb71207ffe6e882f", "simhash": "1:1b2ee12a26443c68", "word_count": 2672 }, "last_updated": "2023-07-14T16:30:29.332614+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and CALABRIA concur." ], "parties": [ "BILL O. WEEKS and TRACY WEEKS, Plaintiffs v. SELECT HOMES, INC., Defendant" ], "opinions": [ { "text": "TYSON, Judge.\nBill O. Weeks (\u201cMr. Weeks\u201d) and Tracy Weeks (collectively, \u201cplaintiffs\u201d) appeal from order entered, which granted Select Homes, Inc.\u2019s (\u201cdefendant\u201d) motion for directed verdict. We affirm.\nI. Background\nOn 21 November 2006, plaintiffs filed a complaint and asserted claims of: (1) breach of contract; (2) breach of the implied warranty of habitability; and (3) unfair and deceptive trade practices. The complaint alleged: (1) plaintiffs had purchased a two story modular home from defendant for $135,545.00; (2) when placed upon plaintiffs\u2019 property, the home was \u201cless durable and at a much lower quality then could be expected and was not as contracted by... [p]laintiffs in violation of the North Carolina Building Code and the specifications of the manufacturer^]\u201d (3) plaintiffs occupied the home on the condition that several defects would be repaired in accordance with the building code; (4) one of defendant\u2019s employees turned off the water supply to the home \u201cto further injure ... [p]laintiffs[;]\u201d and (5) defendant\u2019s failure to properly install the home caused the structure to be unsuitable for its intended purpose.\nDefendant answered plaintiffs\u2019 complaint, moved to dismiss, and alleged plaintiffs: (1) had failed to allege sufficient facts to support a claim for unfair and deceptive trade practices; (2) are not entitled to recover for a breach of an expressed or implied warranty, \u201cas the contract . . . specifically exclude[d] and disclaim[ed] any and all such warranties[;]\u201d and (3) had failed to state or identify a claim upon which relief could be granted for defendant\u2019s alleged act of turning off plaintiffs\u2019 water.\nDefendant also moved for summary judgment. Defendant\u2019s motions were heard on 11 June 2007. The trial court: (1) granted defendant\u2019s motion for summary judgment \u201cas to [plaintiffs\u2019 claims for Chapter 75, punitive damages and the alleged shutting off of water to [plaintiffs\u2019 home\u201d and (2) denied defendant\u2019s motion for summary judgment \u201cas to [plaintiffs\u2019 claims for breach of contract and breach of implied warranty of habitability . . . .\u201d Plaintiffs did not appeal the trial court\u2019s order entered on defendant\u2019s motions to dismiss and for summary judgment.\nPlaintiffs remaining claims proceeded to trial on 8 October 2007. At the close of plaintiffs\u2019 evidence, defendant moved for a directed verdict on the grounds that plaintiffs: (1) abandoned their claim for breach of contract; (2) prevented the performance of defendant; (3) accepted and took possession of the home with knowledge of defects; (4) failed to mitigate their damages; and (5) failed to otherwise prove or establish their damages. The trial court granted defendant\u2019s motion for a directed verdict, entered judgment in favor of defendant, and dismissed plaintiffs\u2019 remaining claims with prejudice. Plaintiffs appeal.\nII. North Carolina Rules of Appellate Procedure\nOn 9 July 2008, defendant moved to strike plaintiffs\u2019 brief and dismiss plaintiffs\u2019 appeal based on numerous violations of Appellate Rule 28 and the formatting requirements set forth in Appendices B and E of the North Carolina Rules of Appellate Procedure. Defendant alleged the following errors:\n(a) failure to satisfy the requirements for proper formatting and presentation of the Index to the Brief; (b) failure to include an inside caption, proper pagination and proper topical headings; (c) failure to include or provide a statement of grounds for appellate review; (d) failure to reference the assignments of error; (e) failure to provide proper citation to the Record and authorities relied upon; (f) failure to provide Identification of Counsel; (g) failure to provide a Certificate of Compliance; and (h) failure to include in Appendixes those portions of the transcript identified or to reproduce those portions verbatim in the body of the Brief.\nDefendant\u2019s brief in support of its motion to strike plaintiffs\u2019 brief and dismiss plaintiffs\u2019 appeal includes two additional errors: (1) \u201cnumerous erroneous citations to authority[]\u201d and (2) \u201ccountless typographical errors.\u201d Plaintiffs responded and stated \u201cthat if there are any violations of the Rules of Appellate Procedure, which the Plaintiffs-Appellants deny, they are non-jurisdictional and perhaps could best be summarized as inartful appellate advocacy.\u201d\nWe initially address defendant\u2019s motion to dismiss plaintiffs\u2019 appeal. In Dogwood, Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., our Supreme Court stated \u201cthat the occurrence of default under the appellate rules arises primarily from the existence of one or more of the following circumstances: (1) waiver occurring in the trial court; (2) defects in appellate jurisdiction; and (3) violation of nonjurisdictional requirements.\u201d 362 N.C. 191, 194, 657 S.E.2d 361, 363 (2008). Here, plaintiffs\u2019 noncompliance falls within the third category.\nA. Appellate Rules 25 and 34\n\u201cBased on the language of [Appellate] Rules 25 and 34, the appellate court may not consider sanctions of any sort when a party\u2019s noncompliance with nonjurisdictional requirements of the [appellate] rules does not rise to the level of a \u2018substantial failure\u2019 or \u2018gross violation.\u2019 \u201d Id. at 199, 657 S.E.2d at 366.\nIn determining whether a party\u2019s noncompliance with the appellate rules rises to the level of a substantial failure or gross violation, the court may consider, among other factors, whether and to what extent the noncompliance impairs the court\u2019s task of review and whether and to what extent review on the merits would frustrate the adversarial process. See Hart, 361 N.C. at 312, 644 S.E.2d at 203 (noting that dismissal may not be appropriate when a party\u2019s noncompliance does not \u201c \u2018impede comprehension of the issues on appeal or frustrate the appellate process\u2019 \u201d (citation omitted)); Viar, 359 N.C. at 402, 610 S.E.2d at 361 (discouraging the appellate courts from reviewing the merits of an appeal when doing so would leave the appellee \u201cwithout notice of the basis upon which [the] appellate court might rule\u201d (citation omitted)). The court may also consider the number of rules violated, although .in certain instances noncompliance with a discrete requirement of the rules may constitute a default precluding substantive review. See, e.g., N.C.R. App. P. 28(b)(6) (\u201cAssignment 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).\nId. at 200, 657 S.E.2d at 366-67 (emphasis supplied).\nHere, plaintiffs\u2019 Appellate Rules violations include the failure to: (1)reference any assignment of error immediately following each question presented as required by N.C.R. App. P. 28(b)(6); (2) include a statement of the grounds for appellate review as required by N.C.R. App. P. 28(b)(4); (3) include a certification that their brief contained no more than 8,750 words as required by N.C.R. App. P. 28(j)(l)(B)2; (4) include an index to their brief as required by N.C.R. App. P. 28(d)(l)a and b; (5) include an inside caption as required by N.C.R. App. P. 26(g)(1) and Appxs. B and E; (6) properly format the caption of their brief as required by N.C.R. App. P. 26(g)(1) and Appx. B; (7) properly position and format the page numbering of their brief as required by N.C.R. App. P. 26(g)(1) and Appx. B; and (8) properly format their topical headings as required by N.C.R. App. P. 26(g)(1) and Appx. B.\nWe hold that plaintiffs\u2019 numerous appellate rules violations and other errors \u201crise to the level of a \u2018substantial failure\u2019 or \u2018gross violation.\u2019 \u201d Dogwood, 362 N.C. at 199, 657 S.E.2d at 366. We turn to \u201cwhich, if any, sanction under [Appellate] Rule 34(b) should be imposed.\u201d Id. at 201, 657 S.E.2d at 367.\nB. Appellate Rule 34fb)\nA court of the appellate division may impose one or more of the following sanctions:\n(1) dismissal of the appeal;\n(2) monetary damages including, but not limited to,\na. single or double costs,\nb. damages occasioned by delay,\nc. reasonable expenses, including reasonable attorney fees, incurred because of the frivolous appeal or proceeding;\n(3) any other sanction deemed just and proper.\nN.C.R. App. P. 34(b) (2008).\nGiven the number of nonjurisdictional appellate rules violations in this case, we hold plaintiffs\u2019 noncompliance to be substantial, but not so egregious as to warrant dismissal of plaintiffs\u2019 appeal. See Dogwood, 362 N.C. at 200, 657 S.E.2d at 366 (\u201c[0]nly in the most egregious instances of nonjurisdictional default will dismissal of the appeal be appropriate.\u201d (Citation omitted)). In the exercise of our discretion, plaintiffs\u2019 attorney is ordered to: (1) pay double the printing costs of this appeal and (2) review the Rules of Appellate Procedure and certify by affidavit to this Court that he will be more diligent and comply with the Rules of Appellate Procedure in any future appeals. N.C.R. App. P. 34(b)(2)a and (3). The Clerk of this Court is to enter an order accordingly. We now review the merits of plaintiffs\u2019 appeal.\nTTT. Issues\nPlaintiffs argue the trial court erred when it: (1) granted defendant\u2019s motion for a directed verdict and (2) failed to allow the opinion testimony of two of plaintiffs\u2019 witnesses.\nIV. Motion for a Directed Verdict\nPlaintiffs argue the trial court erred when it granted defendant\u2019s motion for a directed verdict because \u201cplaintiffs produced much more than a scintilla of evidence to prove their claim of breach of the implied warranty of habitability.\u201d We disagree.\nA. Standard of Review\nThe standard of review for a motion for directed verdict is whether the evidence, considered in the light most favorable to the non-moving party, is sufficient to be submitted to the jury. A motion for directed verdict should be denied if more than a scintilla of evidence supports each element of the non-moving party\u2019s claim. This Court reviews a trial court\u2019s grant of a motion for directed verdict de novo.\nHerring v. Food Lion, LLC, 175 N.C. App. 22, 26, 623 S.E.2d 281, 284 (2005) (internal citations omitted), aff\u2019d per curiam, 360 N.C. 472, 628 S.E.2d 761 (2006).\nB. Analysis\n[I]n every contract for the sale of a recently completed dwelling, and in every contract for the sale of a dwelling then under construction, the vendor, if he be in the business of building such dwellings, shall be held to impliedly warrant to the initial vendee that, at the time of the passing of the deed or the taking of possession by the initial vendee (whichever first occurs), the dwelling, together with all its fixtures, is sufficiently free from major structural defects, and is constructed in a workmanlike manner, so as to meet the standard of workmanlike quality then prevailing at the time and place of construction; and that this implied warranty in the contract of sale survives the passing of the deed or the taking of possession by the initial vendee.\nHartley v. Ballou, 286 N.C. 51, 62, 209 S.E.2d 776, 783 (1974) (citation omitted).\nOur Supreme Court further explained:\nAn implied warranty cannot be held to extend to defects which are visible or should be visible to a reasonable man upon inspection of the dwelling. . . . The determinative question here is whether the purchaser, prior to the passing of the deed or the taking of possession (whichever first occurs), had notice of the alleged defects without regard to whether such notice was obtained while the house was under construction or after the completion thereof.\nId. at 61, 209 S.E.2d at 782 (internal citations omitted).\n. Here, the record on appeal clearly establishes that: (1) Mr. Weeks testified that he was familiar with \u201chundreds\u201d of \u201cconstruction projects ... in a supervisory role\u201d based on his out-of-state construction work; (2) plaintiffs testified they observed, photographed, and listed many problems and areas of concern throughout the construction process; (3) plaintiffs received notice from the Alleghany County Inspections Department of various items and deficiencies which needed to be completed or corrected before a Certificate of Occupancy would be issued; (4) plaintiffs hired a professional engineer to inspect \u201cthe conditions that [Mr. Weeks had] brought to [their] attention[;]\u201d and (5) plaintiffs took possession of the home prior to the time the issues were rectified and before a Certificate of Occupancy was issued.\nThe trial court properly granted defendant\u2019s motion based on the reasoning articulated by our Supreme Court in Hartley. 286 N.C. at 61, 209 S.E.2d at 782. Plaintiffs had notice of the alleged defects \u201cprior to the passing of the deed or the taking of possession . . . .\u201d Id. This assignment of error is overruled.\nIn light of our holding, it is unnecessary to determine whether the trial court erred when it failed to allow plaintiffs to enter the opinion testimony of two of their witnesses. Professional Engineer Sydney Chipman\u2019s testimony of the costs of repairs and Mr. Weeks\u2019s testimony of the fair market value of the home does not negate the fact that plaintiffs had notice of the alleged defects before they took possession of the home.\nPlaintiffs\u2019 third and final assignment of error states \u201c[t]hat the [trial] [c]ourt committed error by engaging in improper and disrespectful conduct towards . . . [p]laintiff[s\u2019] trial counsel, in violation of . . . [p]laintiff[s\u2019] Statutory and Constitutional Rights.\u201d This assignment of error is not set out in plaintiffs\u2019 appellate brief and is deemed . abandoned. See N.C.R. App. P. 28(b)(6) (2008) (\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). This assignment of error is dismissed.\nV. Conclusion\nPlaintiffs had actual notice of alleged defects in their home \u201cprior to the passing of the deed or the taking of possession . . . .\u201d Hartley, 286 N.C. at 61, 209 S.E.2d at 782. The trial court properly granted defendant\u2019s motion for directed verdict on plaintiffs\u2019 breach of the implied warranty of habitability claim. Id. Plaintiffs have neither assigned error to nor argued that the trial court erred when it granted defendant\u2019s motion for a directed verdict on plaintiffs\u2019 breach of contract claim. That portion of the trial court\u2019s order is not before us and is also left undisturbed. The trial court\u2019s order is affirmed.\nAffirmed.\nJudges McCULLOUGH and CALABRIA concur.", "type": "majority", "author": "TYSON, Judge." } ], "attorneys": [ "Law Office of Harold J. Bender, by Harold J. Bender, for plaintiff-appellants.", "Forman Rossabi Black, P.A., by Emily J. Meister, for defendantappellee." ], "corrections": "", "head_matter": "BILL O. WEEKS and TRACY WEEKS, Plaintiffs v. SELECT HOMES, INC., Defendant\nNo. COA08-480\n(Filed 18 November 2008)\n1. Appeal and Error\u2014 appellate rules violations \u2014 substantial failure or gross violation \u2014 nonj.urisdictional\u2014sanctions less than dismissal\nDefendant\u2019s motion to strike plaintiffs\u2019 brief and dismiss plaintiffs\u2019 appeal based on numerous violations of Appellate Rule 28 and the formatting requirements set forth in Appendices B and E of the North Carolina Rules of Appellate Procedure is denied because although the numerous appellate rules violations and other errors rise to the level of a substantial failure or gross violation, they are not so egregious as to warrant dismissal of plaintiffs\u2019 appeal given the number of nonjurisdictional appellate rules violations. In the exercise of its discretion, the Court of Appeals ordered plaintiffs\u2019 attorney to pay double the printing costs of this appeal and review the Rules of Appellate Procedure and certify by affidavit to the Court that he will be more diligent and comply with the Rules of Appellate Procedure in any future appeals. N.C. R. App. P. 34(b)(2)a and (3).\n2. Warranties\u2014 implied warranty of habitability \u2014 modular home \u2014 directed verdict \u2014 notice of defects\nThe trial court did not err by granting defendant\u2019s motion for a directed verdict even though plaintiffs contend they produced more than a scintilla of evidence to prove their claim of breach of the implied warranty of habitability arising from the purchase of a modular home because plaintiffs had notice of the alleged defects prior to the passing of the deed or the taking of possession.\n3. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nAlthough plaintiffs contend that the trial court committed error by engaging in improper and disrespectful conduct toward plaintiffs\u2019 trial counsel, this assignment of error is deemed abandoned because it was not set out in plaintiffs\u2019 brief as required by N.C. R. App. P. 28(b)(6).\nAppeal by plaintiffs from order entered 2 November 2007 by Judge Moses A. Massey in Alleghany County Superior Court. Heard in the Court of Appeals 23 October 2008.\nLaw Office of Harold J. Bender, by Harold J. Bender, for plaintiff-appellants.\nForman Rossabi Black, P.A., by Emily J. Meister, for defendantappellee." }, "file_name": "0725-01", "first_page_order": 757, "last_page_order": 764 }