Burke County Public Schools Bd. of Educ. v. Juno Const. Corp.

• Decision Date: 20 September 1983
• Docket Number: No. 8225SC983,8225SC983
• Court: North Carolina Court of Appeals
• Parties: , 13 Ed. Law Rep. 541 BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION v. JUNO CONSTRUCTION CORPORATION and Statesville Roofing & Heating Company.

Page 557

306 S.E.2d 557

64 N.C.App. 158, 13 Ed. Law Rep. 541

BURKE COUNTY PUBLIC SCHOOLS BOARD OF EDUCATION v. JUNO CONSTRUCTION CORPORATION and Statesville Roofing &

Heating Company.

No. 8225SC983.

Court of Appeals of North Carolina.

Sept. 20, 1983.

Simpson, Aycock, Beyer & Simpson, P.A. by Samuel E. Aycock, Morganton, for plaintiff.

Raymer, Lewis, Eisele, Patterson & Ashburn by Douglas G. Eisele, Statesville, for defendant Statesville Roofing & Heating Company.

WELLS, Judge.

In its first assignment of error, defendant argues that the trial court erred in denying its motion to amend the pleadings to allege unenforceability of the roof maintenance contract. This identical motion was made by defendant, and denied by the court in the initial trial of this case in 1979. The trial court's denial of the motion to amend was affirmed by this court in Board of Education v. Construction Corp., supra.

Where a question before an appellate court has previously been answered on an earlier appeal in the same case, the answer to the question given in the former appeal becomes "the law of the case" for purposes of later appeals. La Grenade v. Gordon, 60 N.C.App. 650, 299 S.E.2d 809 (1983); see also Complex, Inc. v. Furst and Furst v. Camilco., Inc. and Camilco, Inc. v. Furst, 57 N.C.App. 282, 291 S.E.2d 296, disc. rev. denied, 306 N.C. 555, 294 S.E.2d 369 (1982). This assignment is, therefore, overruled. In its present appeal, defendant advances another theory in support of its motion to amend, i.e., that its agreement with plaintiff was unenforceable as against public policy. Such additional arguments may not serve to change the law of this case on this point.

Defendant also assigns as error the trial court's allowing plaintiff's expert witness Luther Pinkerton to estimate the amount of damages caused to plaintiff's roof as a result of defendant's failure to maintain the roof between August 1973 and August 1978, as required by the contract. Defendant raises four objections to Pinkerton's testimony. First, defendant argues Pinkerton had no firsthand knowledge of the condition of the roof before 1981, and was improperly permitted to base part of his estimates on testimony of Thomas Anderson, a roofing expert, who viewed the roof in 1977 and 1981.

It is well established that an expert witness need not have firsthand knowledge of all matters upon which he bases an opinion. He may, for instance, base an opinion upon previous testimony given in the same trial. McCormick, The Law of Evidence, § 14 (1972), 1 Brandis, North Carolina Evidence, § 136 (2d Rev.Ed.1982), see also State v. Wade, 296 N.C. 454, 251 S.E.2d 407 (1979).

Second, defendant argues that Anderson did not view all areas of the roof in 1977, and therefore could not accurately distinguish between damage existing in 1977, for which defendant was responsible, and damage occurring after August 1978, for which defendant was not liable. Although there was some evidence at trial that Anderson did not personally inspect every square foot of the roof in 1977, this is not sufficient to bar his testimony, nor to prevent Pinkerton from basing his cost estimates upon Anderson's testimony. Rather, defendant's objection goes to the weight and credibility of the evidence, a matter for the jury. Third, defendant contends Pinkerton failed to base his damage estimate on the cost required to...