Opinion
No. COA12–120.
2012-08-7
The FISHER HOUSING COMPANIES, INC., d/b/a Home Headquarters, Plaintiff, v. Haywood J. HENDRICKS, Haywood J. Hendricks, as Administrator of the Estate of Haywood R. Hendricks and Alice R. Hendricks, Defendants.
W. Dudley Whitley, III, and M. Greg Crumpler, of Battle, Winslow, Scott & Wiley, PA, attorneys for plaintiff. James Scarbrough of Ferguson, Scarbrough, Hayes, Hawkins & Demay, PA, for defendants.
Appeal by defendants from judgment entered 25 August 2011 by Judge Clifton W. Everett, Jr., in Edgecombe County Superior Court. Heard in the Court of Appeals 5 June 2012. W. Dudley Whitley, III, and M. Greg Crumpler, of Battle, Winslow, Scott & Wiley, PA, attorneys for plaintiff. James Scarbrough of Ferguson, Scarbrough, Hayes, Hawkins & Demay, PA, for defendants.
ELMORE, Judge.
Haywood J. Hendricks, both individually and as the administrator of the estate of his father Haywood R. Hendricks, and his mother, Alice R. Hendricks, (defendants) appeal from a judgment (1) ordering them to pay $25,904.00 plus interest and costs for breach of contract and (2) placing a lien on the Hendricks' property in favor of Fisher Housing Companies, Inc. d/b/a Home Headquarters (plaintiff). We affirm.
I. Background
On 7 December 2007, Haywood J. Hendricks (Haywood J.) entered into a written contract with plaintiff for the construction and delivery of a Crestline modular home on his parents' property in Rocky Mount. The contract price of the home was $252,369.00. The modular home was delivered in June of 2008, and construction began immediately. Prior to completion, Haywood J. observed and complained of unleveled flooring, bowed walls, and leaks. On two separate occasions, Haywood J. provided plaintiff with a “punch list” of issues he wanted to be addressed. On 2 December 2008, a certificate of occupancy for the home was issued by the city of Rocky Mount; thereafter, plaintiff requested the balance of payment from Haywood J. However, Haywood J. maintained that the construction contained defects. He refused to pay the remaining balance owed on the purchased price and, instead, produced a third “punch list.” An agreement was never reached between the parties concerning repairs to the home or payment of the balance owed on the purchase price, $33,904.00.
On 26 January 2009, plaintiff filed suit against defendants for breach of contract. Plaintiff sought to recover the unpaid balance of the contract plus interest. Additionally, plaintiff demanded that it be entitled to a lien on the property for the purpose of securing payment, authorized to foreclose its lien, and be awarded reasonable attorney fees and court costs. Defendants counterclaimed, alleging negligent construction and damages.
On 25 April 2011, the case came on for trial by jury. At trial, defendants called witness Dennis Grizer, a licensed general contractor. Grizer had previously inspected the home and provided defendants with an estimated cost of repairs. Although Grizer testified that he had no experience constructing modular homes, defendants moved to tender him as an expert in general contracting. Plaintiff's objection to tendering Grizer as an expert was sustained by the trial court. During defendants' direct examination of Grizer, plaintiff repeatedly objected to questions calling for Grizer's opinion. The trial court instructed defendants' attorney not to “use the word opinion. Just tell—just ask him when he inspected the house what did he find and is this an estimate ... as a contractor [of what] he thinks it's going to take to fix it and ask him what it is.” The trial court further explained that:
“Mr. Grizer is just a general contractor. He's not an expert in that field. He's just a general contractor. And he can testify what he would do in building a regular house. I'm sure you already asked him had he ever built a modular home. He said, no. So he has no experience in that. So all he can do is tell how he does his houses and then what he observed in this one.”
At the conclusion of the evidence, plaintiff's counsel presented the trial court with Civil Pattern Jury Instruction 503.21 titled “Owner's Recovery Contractor's Partial Breach of Construction Contract.” He stated, “I'm going to hand these two up to you, Judge. They both have to do with defendant[s'] measure of damages on his counterclaim. And, one, is 503.21 and one is 503.79.” However, during jury instructions, the trial court instructed the jury to apply the same measure for defendants' damages as read for plaintiff's damages, stating “both sides get the same instruction. I don't want to have to read all that over to you again ... I cancelled it out because we covered that or do you want me to repeat it again?” Defendants' attorney replied “That's fine, your honor.” The trial court then asked, “is there anything further I need to tell the jury before I give them my concluding instructions?” Defendants' attorney replied “Not from the defendant, your Honor.” And again, after the jury had left to deliberate, the trial court asked both attorneys, “before sending the verdict sheet to the jury and allowing them to begin their deliberations, I'll now hear any suggestions, any corrections or additions to my instructions in order to present a proper and accurate instruction to the jury.” Defendants' attorney again replied “No, your Honor.”
The jury then returned a verdict awarding plaintiff the balance owed on the contract of $33,904.00, offset by the repairs and damages owed to defendants of $8,000.00 based on their counterclaim, totaling $25,904.00. Defendants now appeal.
II. Arguments
A. Expert testimony
Defendants first argue that the trial court erred in excluding the opinion testimony of Dennis Grizer concerning defects in the construction of the modular home and the cost to repair those defects. Defendants further argue that the trial court erred in limiting Grizer's testimony solely to how he builds “stick built” homes and how that construction differs from what he actually observed at the home constructed for Hendricks. We disagree.
With regards to the trial court's decision not to tender Grizer as an expert, the determination of whether the witness “has the requisite level of skill to qualify as an expert witness is ordinarily within the exclusive province of the trial judge,” and it “will not be reversed on appeal unless there is no evidence to support it.” State v. Parks, 96 N.C.App. 589, 592, 386 S.E.2d 748, 750 (1989) (quotations and citations omitted).
Here, the home at issue was a modular, or manufactured home. Grizer testified that he had no experience with modular/manufactured homes. When asked “do you construct manufactured homes?” he replied “I do not.” Later, he was again asked “[y]ou don't have any experience with modular homes, right?” to which he replied, “No, sir.” Therefore, we conclude that the trial court was correct in determining that Grizer lacked the requisite level of skill to testify as an expert witness concerning the construction of a modular or manufactured home. Accordingly, we conclude that the trial court did not err with regards to this issue.
Further, with regards to whether the trial court erred in limiting Grizer's opinion, we note that:
[i]f the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.
N.C. Gen.Stat. § 8C–1, Rule 701 (2011).
Here, the trial court allowed Grizer to testify as to “what he would do in building a regular house ... and then what he observed in this one.” We have already determined that the trial court did not err by refusing to tender Grizer as an expert witness. Thus, we conclude that the trial court acted appropriately in restricting Grizer's testimony to only things he actually observed. Accordingly, we conclude that the trial court did not err with regards to this issue. B. Jury instructions
Defendants next argue that the trial court erred in failing to instruct the jury on the measure of damages for negligent construction pursuant to Civil Pattern Instruction 503.21. We decline to address this issue.
As a general rule “a party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires to consider its verdict [.]” N.C.R.App. P. Art. II, Rule 10(a)(2) (2012).
Here, defendants did not object to the jury instructions given by the trial court at any time. The record shows that after the trial court instructed the jury on damages for negligent construction, the trial court asked “is there anything further I need to tell the jury before I give them the concluding instructions?” Defendants' attorney answered “[n]ot from the defendant, your Honor.” Thus, we conclude that defendants have not properly preserved this issue for review.
However, defendants direct our attention to this Court's ruling in Kinsey v. Spann, where we held that “where a party submits a written request for instructions during the charge conference, that party need not object to the instructions as read in order to properly preserve his appeal as to those instructions.” Kinsey v. Spann, 139 N.C.App. 370, 373, 533 S.E.2d 487, 490 (2000) (quotations and citation omitted) (emphasis added). Defendants argue that because a written request for Pattern Instruction 503.21 was made to the trial court, this issue was properly preserved for appeal. Again, we disagree.
Here, the request for Pattern Instruction 503.21 was actually made by plaintiff's attorney. During the charge conference, the following exchange occurred between the trial court and the plaintiff's attorney:
THE COURT: Okay. All right. What else you got?
PLAINTIFF'S ATTORNEY: I'm going to hand these two up to you, Judge. They both have to do with the defendant's measure of damages on his counterclaim. And, one, is 503.21 and one is 503.79.
THE COURT: Okay. Go ahead. Come on up. You want this read about the measure of damages on his counterclaim.
PLAINTIFF'S ATTORNEY: That's correct, your Honor.
THE COURT: Okay.
At no time during the trial did defendants' attorney request Pattern Instruction 503.21. Thus, we conclude that our ruling in Kinsey is not applicable here. Accordingly, we decline to address this issue on appeal.
III. Conclusion
In sum, we conclude that the trial court did not err in limiting Grizer's testimony to things he actually observed, because Grizer was properly deemed not to be an expert witness. We also decline to address whether the trial court erred in instructing the jury, as defendants have failed to preserve this issue on appeal.
Affirmed. Chief Judge MARTIN and Judge HUNTER, JR., Robert N., concur.
Report per Rule 30(e).