Opinion
No. COA10-1024
Filed 1 March 2011 This case not for publication
Appeal by defendant from order and judgment entered 22 January 2010 by Judge Jane P. Gray in Wake County District Court. Heard in the Court of Appeals 27 January 2011.
Shirley Adams, P.L.L.C., by A. Graham Shirley, for plaintiff appellee. Tharrington Smith, L.L.P., by Eva B. DuBuisson and Rod Malone, for defendant appellant.
Wake County No. 09-CVD-2474.
Donald Bender ("defendant") appeals from the trial court's order and judgment for Charles Douglas Sutton, Jr. ("plaintiff"), in the amount of $73,504.13. For reasons discussed herein, we affirm.
I. Background
This is a breach of contract action arising out of a contract for defendant to renovate plaintiff's house for $165,000.00. In late 2007, plaintiff made arrangements for Chris Bender to renovate a house he intended to purchase. Defendant is Chris Bender's father and holds the general contractor's license under which Chris Bender operates as a qualifier. Defendant and Chris Bender started on the renovations shortly after plaintiff purchased the house in January of 2008. Although Chris Bender had originally said that the renovations would cost $100,000.00, he later informed plaintiff that the cost would be approximately $165,000.00.
In order to complete the renovations, plaintiff obtained financing through Capital Bank. Capital Bank required a contract in order to finance the renovations, so defendant prepared a Single Family Dwelling Construction Contract (the "contract"), which specified a price of $165,000.00. The contract, which was executed by the parties on 23 April 2008, provided the following:
The Owner agrees to remit payment for the construction of the dwelling in weekly payments as determined by the cost and scope of work completed. It is understood that certain work has been completed and money paid as of the date of the signing of this agreement.
The contract also required that "all future billings must be paid within 48 hours" after being submitted by defendant. A Specification of Materials that set forth additional details regarding the materials to be used was attached to the contract.
Defendant and Chris Bender continued to renovate plaintiff's house after the contract was executed. During this time, defendant would submit an invoice to Capital Bank and Capital Bank would pay defendant after inspecting the work invoiced.
Defendant submitted Invoice 5 to plaintiff for the amount of $14,208.16. Plaintiff did not pay this invoice immediately, because he had been billed for work that defendant had not completed. Plaintiff called Walt Parker ("Mr. Parker") at Capital Bank to discuss the invoice and Mr. Parker suggested that the parties meet to discuss the matter.
On or around 10 June 2008, plaintiff, defendant, Chris Bender, and Mr. Parker met at Capital Bank. Plaintiff testified that during this meeting, defendant "requested over $80,000, in addition to the $165,000" in order to complete the renovations. Defendant asserts that the additional costs were due to plaintiff adding upgrades and constantly changing his mind about what he wanted. Defendant provided Mr. Parker with a list of items that were going to increase the cost, such as tile allowances, flooring, cabinets, and electrical work. Plaintiff claims that the additional costs included work that the contract already required defendant to complete. The parties decided that they would meet again to continue the discussion. Defendant said he would think of ways to reduce expenses and bring those ideas to the next meeting.
Plaintiff and defendant met a couple days later at plaintiff's house. The parties dispute what occurred during this meeting. Plaintiff said that defendant "discussed some ways that he could lower the cost so that it wouldn't be actually 80-some thousand dollars over 165,000" but contended that defendant's proposed changes were lower quality than originally specified in the contract. Plaintiff testified that defendant told him that the total cost of the renovations would exceed $165,000.00 and that he would not complete the renovations unless he was paid over $165,000.00.
Defendant said that he told plaintiff he would finish the renovations, as long as plaintiff paid his bills on time and stopped changing his mind about what he wanted. Defendant said that plaintiff informed him that he had already found another contractor to complete the renovations for less money. Defendant said that was fine and left the meeting with the understanding that plaintiff was terminating their contract so that plaintiff could hire a cheaper contractor. Defendant did not perform any work on plaintiff's house after this meeting.
On or around 15 June 2008, defendant sent plaintiff Invoice 6 for the amount of $9,224.71, which defendant says was not paid. Plaintiff hired another contractor to complete the renovations for $113,503.81, an amount $73,504.13 more than his contract with defendant provided.
On 10 February 2009, plaintiff filed a complaint against defendant in Wake County District Court for breach of contract. Defendant filed an answer on 24 April 2009, denying the breach and raising defenses of fraud, estoppel, payment, mutual termination, and accord and satisfaction. The action was consolidated with a lawsuit filed by Powersource Electrical Contractors, Inc., against plaintiff and defendant for payment of electrical materials and labor. Both actions were heard before Judge Jane P. Gray in Wake County District Court on 9 December 2009. On 22 January 2010, the trial court entered an order and judgment against defendant in the amount of $73,504.13. Defendant appeals.
II. Standard of Review
"It is well settled in this jurisdiction that when the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court's findings of fact and whether its conclusions of law were proper in light of such facts." Shear v. Stevens Building Co., 107 N.C. App. 154, 160, 418 S.E.2d 841, 845 (1992). If the factual findings are supported by competent evidence, such findings are conclusive on appeal, even if there is evidence to the contrary. Lagies v. Myers, 142 N.C. App. 239, 246, 542 S.E.2d 336, 341, disc. review denied, 353 N.C. 526, 549 S.E.2d 218, 218-19 (2001). We review the trial court's conclusions of law de novo. Shear, 107 N.C. App. at 160, 418 S.E.2d at 845.
III. Issues
Defendant assigns error to several of the trial court's factual findings and conclusions of law. Specifically, defendant claims that the trial court erred by (I) finding that defendant refused to complete the renovations required under the contract unless he was paid an additional $85,000.00; (II) concluding that defendant breached the contract by failing to complete the renovations; and (III) concluding that plaintiff did not abandon or release defendant from the contract. After careful review, we affirm the trial court's order and judgment.
A. Factual Findings
Defendant claims that the following findings of fact made by the trial court were not supported by competent evidence:
21. Between May 9, 2008 and June 19, 2008, [plaintiff], either personally, or through Capital Bank paid invoices totaling $70,500.32 for work performed pursuant to the Contract. While these invoices were in the name of Bender Co. Construction, LLC, they were for work [defendant] was required to perform and did perform under the Contract. [Plaintiff] paid all amounts required by him under the Contract, as determined by the cost and scope of work completed.
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24. On or about June 10, 2009, Walt Parker met with [defendant], Chris Bender and [plaintiff] at Capital Bank's Cameron Village Branch Office in Raleigh, North Carolina. During this meeting, [defendant] informed Walt Parker that he could not complete the Work required under the Contract unless he was paid an additional $85,000.00 over and above the $165,000.00 stated in the Contract. At the conclusion of the meeting, [defendant] indicated that he would explore ways to reduce costs and get back with [defendant] to see if something could be worked out.
25. Within a week after the meeting at Capital Bank, [plaintiff] and [defendant] met at the Home wherein [defendant] informed [plaintiff] that he could not and would not complete the work required under the Contract unless he was paid an additional $85,000.00. [Plaintiff] informed [defendant] he would not pay the additional $85,000.00. After being told he would not receive an additional $85,000.00, [defendant] left the site and performed no further work under the Contract.
26. As a result of [defendant's] refusing to complete the work required under the Contract for an additional $85,000.00 plaintiff found other contractors to complete the work required by the Contract.
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29. As of June 30, 2008, [defendant] had stopped performing work under the Contract.
Defendant assigns error to the factual finding that plaintiff "paid all amounts required by him under the Contract, as determined by the cost and scope of work completed." Defendant argues that plaintiff breached the contract by failing to make full payment on Invoices 5 and 6 within 48 hours. However, finding of fact 23, which was not disputed by defendant, stated that Invoice 5 "billed for work that had not yet been completed." Furthermore, the contract only required plaintiff to pay for the renovations "as determined by the cost and scope of work completed." Mr. Parker, who reviewed all defendant's invoices prior to payment, testified that the percentage previously paid under the contract exceeded the percentage of work completed. Although defendant introduced evidence to the contrary, the testimony of Mr. Parker supports the finding that plaintiff had paid defendant all that he was required to pay under the contract.
Finding of fact 24 was also supported by Mr. Parker's testimony that during the 10 June 2009 meeting, defendant said that it would cost an additional $80,000.00 to complete the renovations on plaintiff's house. Plaintiff also testified that defendant "requested over $80,000, in addition to the $165,000, that it was going to take to complete the job[.]"
Defendant also assigns error to findings of fact nos. 25 and 26 and argues that there was no evidence that defendant demanded an additional $85,000.00 to complete the renovations during the second meeting in June. With regard to the specific amount of $85,000.00, defendant is correct. Plaintiff testified that by the second meeting, defendant was no longer requesting $80,000.00, but that defendant would not complete the renovations unless plaintiff paid him an amount over $165,000.00.
Although the record does not support the finding that defendant demanded the specific amount of $85,000.00, there is evidence that defendant told plaintiff he would not finish the house unless he was paid more than $165,000.00. The specific amount that defendant demanded in excess of the contract price is immaterial for purposes of our analysis. The record clearly supports the finding that defendant would not complete the renovations for the agreed upon contractual price.
Defendant also argues that, because the contract did not provide for any deadlines for defendant to complete the work, the trial court erred in finding that defendant stopped performing work under the contract as of 30 June 2008. Although the contract did not specify a date that the renovations would be completed, it was undisputed that by the end of June, defendant was no longer working on plaintiff's house. The parties only disputed the reason why.
Defendant said that he stopped working on plaintiff's house because plaintiff found another contractor to complete the job for less money. However, plaintiff testified that defendant refused to complete the renovations required by the contract for the agreed upon amount of $165,000.00. Therefore, the trial court's finding is supported by the plaintiff's testimony.
B. Conclusions of Law
Defendant also assigns error to the following conclusions of law.
5. [Defendant's] failure to complete the work required under the Contract constitutes a material breach of the Contract.
6. [Defendant's] breach of the Contract occurred no later than June 30, 2008.
7. [Plaintiff] did not abandon the Contract nor did he release [defendant] from his obligations under the Contract.
Such conclusions of law are clearly supported by the trial court's factual findings. As discussed above, the undisputed evidence at trial showed that defendant had stopped working on plaintiff's house by the end of June and had no intention of returning. The factual findings that defendant refused to complete the renovations on plaintiff's home unless plaintiff paid an amount over $165,000.00 sufficiently support the conclusions that plaintiff did not abandon the contract, but that defendant breached the contract.
IV. Conclusion
We affirm the trial court's judgment for plaintiff against defendant.
Affirmed.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).