Opinion
No. COA02-1123
Filed 1 July 2003 This case not for publication
Appeal by defendant from judgment entered 1 April 2002 by Judge Claude S. Sitton in Caldwell County Superior Court. Heard in the Court of Appeals 22 May 2003.
Herbert H. Pearce, P.A., by Herbert H. Pearce, for plaintiff-appellee. Paul W. Freeman, Jr., for defendant-appellant.
Caldwell County No. 00 CVS 542.
Dwight Church d/b/a Dwight Church Hardwoods ("defendant") appeals from judgment entered upon a jury award in favor of Jackie Roten d/b/a Roten Logging Company ("plaintiff") for $10,000.00 in damages arising from breach of contract. We find no error.
Plaintiff owned a logging business and used various equipment to saw and remove timber from wooded areas and transport it to a mill for sale. Defendant owned a sawmill and timber rights to a wooded tract of land ("boundary") located in Mitchell County.
In June 1998, plaintiff was clearing timber in Eden, North Carolina but contacted defendant, whose boundary was closer to where he and his crew lived. Plaintiff and his brother, Mark Roten, met with defendant to view defendant's boundary. Plaintiff testified he and defendant agreed plaintiff was to clear the boundary of all trees with a circumference of eight inches or less for the price of $160.00 per thousand board feet of timber brought to defendant's mill. Plaintiff believed an oral contract was formed at the meeting. Defendant testified he was tired of plaintiff contacting him and claimed he only met plaintiff to show him the boundary was too mountainous for plaintiff's equipment. Defendant insists he never formed a contract with plaintiff to clear the boundary or to allow plaintiff to move his crew and equipment to defendant's boundary.
As a result of the meeting, plaintiff's crew discontinued work in Eden, and plaintiff moved his equipment and crew to defendant's boundary in Mitchell County. After plaintiff completed setting up his equipment, defendant contacted plaintiff and instructed him not to cut any trees on the boundary. Plaintiff unsuccessfully attempted to find substitute work in the same area.
On 27 March 2000, plaintiff filed suit against defendant in Caldwell County Superior Court alleging breach of contract. Defendant answered, asserting in relevant part, that no contract existed between plaintiff and defendant. The case came to trial on 18 March 2002, the Honorable Claude S. Sitton, presiding. At trial, the court sustained objections by defendant concerning evidence of plaintiff's income at the Eden worksite and losses related to plaintiff's equipment. After defendant cross-examined plaintiff concerning operating losses reported in plaintiff's tax returns in previous years, the court, finding defendant had opened the door, allowed plaintiff to explain those losses on re-direct with evidence of income and expenses. At the close of plaintiff's case and at the close of the evidence, defendant moved for a directed verdict pursuant to N.C. Gen. Stat. § 1A-1, Rule 50 (2001). The trial court denied both motions, and the jury awarded plaintiff $10,000.00 in damages upon determining that plaintiff and defendant had entered into an oral contract, that defendant had breached the contract, and that plaintiff's damages were unavoidable. Defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The court denied both motions. Defendant appeals.
On appeal, defendant asserts the trial court erred by (I) admitting into evidence plaintiff's testimony and exhibits relating to the plaintiff's income, expenses, and costs, and (II) failing to grant defendant's motion for judgment notwithstanding the verdict.
I. Evidence of plaintiff's income, expenses, and costs
Defendant argues the trial court erred in allowing plaintiff to testify concerning the expenses and average income from the Eden jobsite because such testimony was speculative, unsupported by the evidence, and provided no reasonably certain basis upon which the jury could determine the amount of damages. We note defendant's original assignment of error contended the testimony was also irrelevant and immaterial. Nonetheless, defendant brought forward no argument in support of those assertions, and they are deemed abandoned insofar as they differ from defendant's argument concerning whether plaintiff's testimony was speculative. N.C.R. App. P. 28(b)(6) (2003). In his brief to this Court, defendant also argued the testimony was improper because it was at variance with the complaint. Having not assigned this ground as error, defendant cannot assert it for the first time on appeal. N.C.R. App. P. 10(a) (2003).
North Carolina General Statute § 8C, Rule 601 (2001) provides the general rule regarding the competency of a witness to testify: "Every person is competent to be a witness except as otherwise provided in these rules." Defendant offers no explanation why plaintiff's testimony as to his income and expenses is not competent evidence. Defendant's assertion that no supporting documents were offered as to these amounts does not make plaintiff's testimony impermissibly speculative. Plaintiff clearly asserted his net income averaged $1,400.00 per day. Plaintiff documented his income in his tax returns, which were introduced into evidence. Plaintiff was not merely guessing or offering an opinion concerning his prior income, he was testifying to his previously earned, average income reported on his tax returns. Tillis v. Cotton Mills, 251 N.C. 359, 366, 111 S.E.2d 606, 613 (1959). Defendant was free to cross-examine plaintiff as to his income and its basis and, in fact, did so. Defendant's argument is without merit.
Defendant also argues the trial court improperly allowed various financial and tax documents on plaintiff's re-direct examination after previously disallowing similar evidence on plaintiff's direct examination. These documents contained trade-in and finance information concerning plaintiff's logging equipment, losses related to repossession of plaintiff's logging equipment, and previously reported income and expense amounts on plaintiff's tax returns. On cross-examination, defendant asked plaintiff questions concerning, among other things, losses reported on his tax returns, loss of equipment by repossession, and equipment trade-in transactions. As the trial court correctly explained, by cross-examining plaintiff on matters that may not have been admissible by plaintiff on direct examination, defendant opened the door to testimony explaining the losses and other transactions with which the documents were concerned. See, e.g., Middleton v. Russell Group, Ltd., 126 N.C. App. 1, 23-24, 483 S.E.2d 727, 740 (1997) (holding "when a party first raises an issue, it opens the door to questions in response to that issue and cannot later object to testimony regarding the subject raised").
II. Judgment Notwithstanding the Verdict
Defendant asserts the trial court should have granted defendant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial because the jury's verdict was against the greater weight of the evidence and contrary to applicable law. Defendant has failed to bring forward any argument supporting the contention that the trial court abused its discretion in denying defendant's motion for a new trial. Accordingly, to the extent defendant assigned error to this ruling by the trial court, it has been abandoned. N.C.R. App. P. 28(b)(6).
"To survive a motion for a directed verdict, the nonmoving party . . . must present `sufficient evidence to sustain a jury verdict in [his] favor, . . . or to present a question for the jury.'" Best v. Duke University, 337 N.C. 742, 749, 448 S.E.2d 506, 510 (1994) (quoting Davis v. Dennis Lilly Co., 330 N.C. 314, 323, 411 S.E.2d 133, 138 (1991)).
The same standard is used in determining the sufficiency of the evidence for the motion for judgment notwithstanding the verdict . . . . The trial court must examine the evidence in a light most favorable to the nonmoving party, giving that party the benefit of all reasonable inferences that may be drawn therefrom.
Id. "The court should deny [a] motion for . . . judgment notwithstanding the verdict when it finds any evidence more than a scintilla to support plaintiff's prima facie case in all its constituent elements." Clark v. Moore, 65 N.C. App. 609, 610, 309 S.E.2d 579, 580-81 (1983). In light of our jurisprudence concerning this motion, it is not surprising that "a motion for judgment notwithstanding the verdict is cautiously and sparingly granted." Bryant v. Nationwide Mut. Fire Ins. Co., 313 N.C. 362, 369, 329 S.E.2d 333, 338 (1985).
Plaintiff's claim is for breach of contract. "The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract." Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000). Defendant contends no valid contract existed because, without evidence tending to show the parties mutually agreed to material and essential terms, it is impossible to determine the parties' responsibilities. These essential terms include the following: price, the amount of timber to be removed, when the work was to begin and end, how and when to pay, and how the work was to be done.
Looking at the evidence in the light most favorable to plaintiff and giving him the benefit of all inferences, defendant offered to pay plaintiff $160.00 per thousand feet in exchange for plaintiff's removal of all timber with a diameter of eight inches or more on defendant's boundary. Defendant's boundary was clearly marked by flags and extended to the top of the mountain. Plaintiff was to begin work on the boundary on the Monday following the meeting between plaintiff, his brother, and defendant. Plaintiff was to continue clearing the boundary until all the timber, as instructed by defendant, was removed. Plaintiff was responsible for cutting the timber, loading it, and delivering it to defendant's "mill in Miller's Creek, North Carolina." In light of this evidence, there is more than a scintilla of evidence establishing the parties' obligations, and the jury could conclude a valid, oral contract existed and defendant breached the contract. Accordingly, we find no merit to this assignment of error.
No error.
Judges McGEE and McCULLOUGH concur.
Report per Rule 30(e).