C.C. Walker Grading & Hauling, Inc. v. S.R.F. Management Corp., 77A84

• Decision Date: 05 June 1984
• Docket Number: No. 77A84,77A84
• Citation: 311 N.C. 170,316 S.E.2d 298
• Court: North Carolina Supreme Court
• Parties: C.C. WALKER GRADING & HAULING, INC. v. S.R.F. MANAGEMENT CORP., a/k/a Sitting Rock Management Corp., and Helen C. Stanley, Trustee for the Benefit of the Children of John David Stanley.

Page 298

316 S.E.2d 298 311 N.C. 170 C.C. WALKER GRADING & HAULING, INC.
v.
S.R.F. MANAGEMENT CORP., a/k/a Sitting Rock Management
Corp., and Helen C. Stanley, Trustee for the
Benefit of the Children of John David Stanley. No. 77A84. Supreme Court of North Carolina. June 5, 1984.

[311 N.C. 175] Leigh Rodenbough, Madison, for plaintiff-appellant.

John T. Weigel, Jr., Greensboro, for defendant-appellee, Helen C. Stanley, Trustee.

MARTIN, Justice.

Plaintiff appeals as of right, pursuant to N.C.G.S. 7A-30, from an opinion of the Court of Appeals which notes a dissent but does not include a dissenting opinion. We take this opportunity to set forth the relevant portion of an amendment to the North Carolina Rules of Appellate Procedure adopted by this Court on 3 November 1983, effective with notices of appeal filed in the Supreme Court on and after 1 January 1984:

Rule 16 of the North Carolina Rules of Appellate Procedure appearing at 287 N.C. 671, 720 entitled "SCOPE OF REVIEW OF DECISIONS OF COURT OF APPEALS" is amended as follows:

....

3. A new subparagraph (b) to be entitled "Scope of Review in Appeal Based Solely Upon Dissent" is hereby adopted as follows:

(b) Scope of Review in Appeal Based Solely Upon Dissent. Where the sole ground of the appeal of right is the existence of a dissent in the Court of Appeals, review by the Supreme Court is limited to a consideration of those issues which are specifically set out in the dissenting opinion as the basis for that dissent and are properly presented in the new briefs required by Rule 14(d)(1) to be filed in the Supreme Court. Other questions in the case may properly be presented to the Supreme Court through a petition for discretionary review, pursuant to Rule 15, or by petition for writ of certiorari, pursuant to Rule 21.

309 N.C. --- (1983).

The intent of this provision is to further ensure that in appeals of right based solely upon dissent, review by this Court shall be limited to those questions on which there was division in the intermediate appellate court. Such review has never been intended[311 N.C. 176] for claims on which that court has rendered unanimous decisions. State v. Campbell, 282 N.C. 125, 191 S.E.2d 752 (1972); Hendrix v. Alsop, 278 N.C. 549, 180 S.E.2d 802 (1971).

Where an appeal of right is taken to this Court based solely on a dissent in the Court of Appeals and the dissenter does not set out the issues upon which he bases his disagreement with the majority, the appellant has no issue properly before this Court. Such appeals are subject to dismissal. Application of this procedural

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amendment to the case at bar precludes further review by appeal of right.

Nevertheless, in this case, we deem it preferable to certify for discretionary review, on our own motion, the following determinative questions: (1) Did the Court of Appeals err in finding that plaintiff was a "general contractor" within the statutory definition and that the services rendered at Sitting Rock Farms between March and June 1979 were governed by the statute? (2) If plaintiff's noncompliance with the above requirement does not bar recovery, does defendant Helen Stanley share liability with defendant S.R.F. Management Corporation for the spring 1979 improvements on the property?

We answer each of these issues in the affirmative and reverse the decision of the Court of Appeals.

With regard to the statutory provision at issue, this Court has held:

The purpose of Article 1 of Chapter 87 of the General Statutes, which prohibits any contractor who has not passed an examination and secured a license as therein provided from undertaking to construct a building costing $20,000.00 or more, is to protect the public from incompetent builders. When, in disregard of such a protective statute, an unlicensed person contracts with an owner to erect a building costing more than the minimum sum specified in the statute, he may not recover for the owner's breach of that contract. This is true even though the statute does not expressly forbid such suits. 53 C.J.S. Licenses § 59 (1948); 33 Am.Jur. Licenses §§ 68-72 (1941); Annot., Failure of artisan or construction contractor to procure occupational or business license or permit as...