Allen v. Roberts Const. Co., Inc.

• Decision Date: 05 July 2000
• Docket Number: No. COA99-775.,COA99-775.
• Citation: 138 NC App. 557,532 S.E.2d 534
• Parties: Antione A. ALLEN and wife, Angela D. Allen; Colleen A. Bannister; William Barnett, Jr. and wife, Pearl A. Barnett; Anthony T. Brandon; Jacqueline B. Brown; Chinauwa S. Chaney; Vera P. Davis; Angela H. Dunlap; Morris L. Elliott and wife, Jacqueline L. Elliott; Thomas E. Fentress and wife, Sandra Jones-Fentress; Cynthia Dianne Ford; Lauralei E. Graves; Larry D. Green and wife, Marcia Lynn Green; Barbara J. Harvey; Randy M. Henderson and wife, Kimberly Y. Henderson; James E. Huggins; Ladon M. James; Reginald L. Mason; Harry E. McCullough, Jr. and wife, Jo Ann McCullough; Samuel D. McQueen, Jr. and wife, Dottie P. McQueen; Failya M. Miles and Sophie L. Miles; Patricia A. Moore; William E. Moore; Kimbel Royal Murphy and wife, Deborah R. Murphy; Calvin M. Smith and wife, Gail S. Smith; Linton A. Thompson and wife, Dimples G. Thompson; Tammy Tuck; Phyllis Johnson-Wiggins; Kenneth S. Wormack and wife, Vanda V. Wormack; and Gladys M. Yarn, Plaintiffs, v. ROBERTS CONSTRUCTION COMPANY, INC.; Bobby Roberts; and Bryant B. Roberts, Defendants.
• Court: North Carolina Court of Appeals

532 S.E.2d 534

138 NC App. 557

Antione A. ALLEN and wife, Angela D. Allen; Colleen A. Bannister; William Barnett, Jr. and wife, Pearl A. Barnett; Anthony T. Brandon; Jacqueline B. Brown; Chinauwa S. Chaney; Vera P. Davis; Angela H. Dunlap; Morris L. Elliott and wife, Jacqueline L. Elliott; Thomas E. Fentress and wife, Sandra Jones-Fentress; Cynthia Dianne Ford; Lauralei E. Graves; Larry D. Green and wife, Marcia Lynn Green; Barbara J. Harvey; Randy M. Henderson and wife, Kimberly Y. Henderson; James E. Huggins; Ladon M. James; Reginald L. Mason; Harry E. McCullough, Jr. and wife, Jo Ann McCullough; Samuel D. McQueen, Jr. and wife, Dottie P. McQueen; Failya M. Miles and Sophie L. Miles; Patricia A. Moore; William E. Moore; Kimbel Royal Murphy and wife, Deborah R. Murphy; Calvin M. Smith and wife, Gail S. Smith; Linton A. Thompson and wife, Dimples G. Thompson; Tammy Tuck; Phyllis Johnson-Wiggins; Kenneth S. Wormack and wife, Vanda V. Wormack; and Gladys M. Yarn, Plaintiffs, v. ROBERTS CONSTRUCTION COMPANY, INC.; Bobby Roberts; and Bryant B. Roberts, Defendants.

No. COA99-775.

Court of Appeals of North Carolina.

July 5, 2000.

Law Office of Robert B. Jervis, P.C., by Robert B. Jervis, and Couch & Associates, by Finesse G. Couch, Durham, for plaintiff-appellees Randy M. Henderson and Kimberly Y. Henderson.

Hayes Hofler & Associates, P.A., by R. Hayes Hofler, and Maupin Taylor & Ellis, P.A., by John I. Mabe, Jr. and Kevin W. Benedict, Raleigh, for defendant-appellants.

GREENE, Judge.

Roberts Construction Company, Inc. (Roberts Construction), Bobby Roberts, and Bryant Roberts (collectively, Defendants) appeal the trial court's denial of Defendants' motions for directed verdict, a judgment filed 2 September 1998 in favor of Randy Henderson and Kimberly Henderson (collectively, Plaintiffs), and an order filed 1 October 1998 denying Defendants' motion for judgment notwithstanding the verdict. Additionally, Defendants appeal the trial court's denial of their motions for summary judgment; however, these assignments of error were not set out in Defendants' brief to this Court and are, therefore, deemed abandoned. N.C.R.App. P. 28(b)(5).

This case began as a consolidated action against Defendants filed by approximately forty plaintiffs on 10 March 1997 for breach of contract, breach of implied warranty, breach of express warranty, fraud, and unfair and deceptive trade practices. The allegations in the complaint arose out of the construction by Roberts Construction of approximately thirty houses in the Forestwood subdivision in Durham. This consolidated action came to trial on 10 August 1998, and the parties consented to go forward with Plaintiffs' claims. Consequently, only Plaintiffs' case was tried on that date, and Plaintiffs' case is the sole case on appeal before this Court.

Plaintiffs' Evidence

Plaintiffs presented evidence at trial that on 26 August 1996 they purchased a house located at 10 Rush Court in the Forestwood subdivision from Roberts Construction. The house was constructed by Roberts Construction, and the purchase price was approximately $86,500.00. At the time of the construction, Bobby Roberts was the sole owner of Roberts Construction and Bryant Roberts was an employee of Roberts Construction. Plaintiffs testified they did not notice any problems with the construction of the house prior to moving into the house; however, Kimberly Henderson noticed cracks in the house beginning in October of 1996.

At the time of Plaintiffs' purchase, Roberts Construction provided Plaintiffs with an express warranty which guaranteed, in pertinent part, that "[Plaintiffs' house] ... is constructed in substantial conformity with the plans and specifications ... which have been approved [for the construction of the house]." This warranty required Plaintiffs to provide Roberts Construction with written notice of any nonconformity "within one year from the date of original conveyance of title to ... [Plaintiffs] or the date of initial occupancy, whichever first occurs."

Benjamin Wilson (Wilson) testified as an expert in the fields of geo-technical engineering and construction materials. Wilson testified regarding the method of constructing a "slab on grade" house, which was the method used by Roberts Construction to build the houses in the Forestwood subdivision. He stated the ground would first be excavated by a backhoe, and the building inspector would then approve the exposed soil for the pouring of concrete. The concrete would be poured around the perimeter of the foundation to the minimum width and thickness required under the North Carolina and Durham Building Codes (the building code) and, after the concrete had hardened, concrete block walls would be constructed around the perimeter. A stone base would be placed on top of the soil inside the perimeter and a vapor barrier, which is a piece of plastic, would be placed on top of the stone base. Concrete would then be poured and, if the plans called for the use of a wire mesh, concrete would be spread over the wire mesh and the wire mesh would be "pulled up into the concrete." Finally, finished flooring, such as vinyl, carpet, or wood, would be placed on top of the concrete slab. The building code requires a minimum compressive strength for a concrete slab of 2500 pounds per square inch (PSI) and minimum thickness of three-and-one-half inches.

Plaintiffs presented evidence the building plans for the construction of their house required a four-inch stone base and a four-inch concrete slab. Plaintiffs' plans also required the use of a vapor barrier and wire mesh reinforcement.

Wilson testified he inspected Plaintiffs' house on 14 December 1996, 6 January 1998, and 3 August 1998. The 14 December 1996 inspection of the house revealed a three-to-four foot hairline crack in the concrete floor beginning at the front door and hairline cracks running horizontally and vertically "in the foundation wall on the left end of the residence." Wilson stated a hairline crack is "typically just ... a crack that has not opened up and [is] less than a 16th of an inch." Wilson testified that when he revisited Plaintiffs' house in January of 1998, the crack in the floor continued to the staircase that leads to the second floor, and Wilson could not determine whether the crack continued under the staircase. The crack had increased in width from a hairline crack to a crack one-quarter to three-eighths of an inch at its widest point. Further, an additional crack had appeared in the foundation wall on the left side of the house. Finally, Wilson testified that when he returned to the house on 3 August 1998, he observed numerous additional cracks on the interior and exterior of the house, including a crack in the floor of the washer/dryer area of the kitchen which proceeded between one-half and one-third of the way across the kitchen floor, a crack proceeding across a bedroom floor and under a wall into another room, and a crack in the sheetrock on the front wall of the house. Wilson stated cracks in sheetrock typically "are the last things to appear when a house is undergoing structural problems."

Wilson also testified he took core samples from the floors of Plaintiffs' house on 27 August 1997. Wilson obtained the core samples by pulling back the carpet in the house and coring through the concrete, leaving a hole in the concrete that is six inches in diameter. Gravel was then dug out by hand, and the thickness of the gravel was measured. Once the gravel had been removed, Wilson then cored down through the soil with a hand auger and took a "dynamic cone penetration test." This was done by driving a cone into the soil to obtain a soil sample.

Wilson testified a core sample taken near the end of one of the cracks in the floor indicated the concrete slab was only three inches thick, which was less than the minimum thickness required by Plaintiffs' plans and by the building code. There was also a one and one-half inch air gap between the vapor barrier and the stone, and below the gap there was a two-inch layer of crushed rock mixed with soil. Also, the soil below the rock was not compacted to the standard required by the building code. Wilson testified based on these tests that the compaction under the slab was not done in a workmanlike manner, did not conform to the minimum requirements of the building code, and created a "major structural deficiency." He also testified the slab itself did not meet minimum building code requirements and created a "major structural defect." Wilson testified the concrete samples revealed an average compressive strength of 940 PSI, which does not meet minimum building code standards and created a "major structural deficiency." He also stated the concrete did not contain the wire mesh required in Plaintiffs' plans.

Plaintiffs also presented evidence regarding cracks in other houses in the Forestwood subdivision constructed by Roberts Construction between 1994 and 1996. Plaintiffs offered into evidence photographs of these cracks, and Defendants objected to the admission of the photographs on the ground their probative value was substantially outweighed by undue prejudice under Rule 403 of the North Carolina Rules of Evidence. In response to Defendants' objection, the trial court stated it had "performed the balancing test under Rule 403" and Defendants' objection was overruled. The photographs were authenticated through the testimony of the photographer who had taken the photographs and they were then admitted into evidence. Wilson subsequently testified regarding the cracks in the other houses constructed by Roberts Construction, and he referred to the photographs of these other houses to illustrate his testimony. Wilson testified he had inspected between thirty-two and thirty-five houses in the Forestwood subdivision other than Plaintiffs' house, and these houses contained cracks similar to the cracks in Plaintiffs' house. Also, these houses did not...