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Wattiker v. Bowens

North Carolina Court of Appeals
Mar 4, 2008
189 N.C. App. 212 (N.C. Ct. App. 2008)

Opinion

No. 07-805.

Filed March 4, 2008.

Durham County No. 05CVD6313.

Appeal by plaintiff from judgment entered 26 February 2007 by Judge Richard G. Chaney in Durham County District Court. Heard in the Court of Appeals 9 January 2008.

William Wattiker, pro se. Wardell Associates, PLLC, by Bryan E. Wardell, for defendant-appellee.


Where there is competent evidence to support the trial court's findings of fact, the decision of the trial court must be affirmed.

I. Factual and Procedural Background

In January of 2004, James H. Bowens (defendant) contracted with William Wattiker (plaintiff) for plaintiff to supply and install granite countertops in the kitchen and bathroom of defendant's home. Plaintiff installed the countertops in July of 2005. After inspecting plaintiff's work, defendant decided that it was not satisfactory, and contacted plaintiff in August 2004 to discuss the problems. Plaintiff refused to re-do the work, replace the countertops, or refund the monies paid to him by defendant. Defendant refused to pay an additional invoice received from plaintiff for $2,725.

Plaintiff brought an action in Small Claims Court for the unpaid invoice, and the magistrate entered judgment for plaintiff on 1 December 2005. Defendant appealed to district court and filed an answer and counterclaims, alleging breach of contract, fraud, negligence, unfair and deceptive trade practices, and seeking punitive damages. Judge Richard G. Chaney heard the matter on 26 January 2007 in Durham County District Court, sitting without a jury, and entered judgment in favor of defendant in the amount of $6,993.15 together with interest and costs on 26 February 2007. Plaintiff appeals.

II. Findings of Fact

Plaintiff makes but a single assignment of error, that there was no evidence in the record to support the decision of the trial court, and particularly the amount awarded to defendant. We disagree.

We first note that under the North Carolina Rules of Appellate Procedure, an appellant is required to specify the findings of fact that he contends were not supported by the evidence. Capps v. NW Sign Indus. of N.C., Inc., ___ N.C. App. ___, 652 S.E.2d 372, 375 (2007) ("Broad, vague, and unspecific assignments of error are insufficient to satisfy Rule 10."). Broadside attacks on findings of fact of a general nature are not permitted. Wade v. Wade, 72 N.C. App. 372, 375-76, 325 S.E.2d 260, 266 (1985). We further note that plaintiff failed to provide "clear and specific record or transcript references" relating to the alleged error and did not "direct[] the attention of the appellate court to the particular error about which the question is made[.]" N.C. R. App. P. 10(c)(1) (2008). Plaintiff also fails to state the grounds for appellate review and the applicable standard of review in violation of N.C. R. App. P. 28(b)(4) and (6).

We nonetheless elect to address plaintiff's stated assignment of error. We do not address plaintiff's arguments pertaining to matters other than the sufficiency of the evidence, as such arguments were not properly preserved and are not properly before this Court. See N.C. R. App. P. 10(a) (2007) ("[T]he scope of review on appeal is confined to a consideration of those assignments of error set out in the record on appeal. . .").

Plaintiff's argument is essentially that the trial court should have believed his evidence and not that of defendant. Where a matter is heard by a trial judge, sitting without a jury, our review is limited to whether there is competent evidence in the record to support the trial court's findings. Helsius v. Robertson, 174 N.C. App. 507, 515, 621 S.E.2d 263, 269 (2005). It is not the role of the appellate court to determine the credibility of the witnesses or to re-weigh the evidence. Phelps v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994). These are functions to be performed by the trial judge. Id.

In this case, the trial court found that plaintiff had failed to meet his burden of proof on his claim and that defendant had met his burden of proof of establishing the elements of his counterclaim. We hold that each of these findings is supported by competent evidence in the record.

This argument is without merit. The decision of the trial court should be affirmed.

Affirmed.

Judges MCCULLOUGH and GEER concur.

Report per Rule 30(e).


Summaries of

Wattiker v. Bowens

North Carolina Court of Appeals
Mar 4, 2008
189 N.C. App. 212 (N.C. Ct. App. 2008)
Case details for

Wattiker v. Bowens

Case Details

Full title:WATTIKER v. BOWENS

Court:North Carolina Court of Appeals

Date published: Mar 4, 2008

Citations

189 N.C. App. 212 (N.C. Ct. App. 2008)