Dellinger v. Michal

• Decision Date: 07 February 1989
• Docket Number: No. 8826SC515,8826SC515
• Citation: 375 S.E.2d 698,92 N.C.App. 744
• Court: North Carolina Court of Appeals
• Parties: Kenneth E. DELLINGER, Plaintiff, v. Richard O. MICHAL and Carolyn S. Michal, Defendants.

Page 698

375 S.E.2d 698

92 N.C.App. 744

Kenneth E. DELLINGER, Plaintiff, v. Richard O. MICHAL and Carolyn S. Michal, Defendants.

No. 8826SC515.

Court of Appeals of North Carolina.

Feb. 7, 1989.

Mitchell & Rallings by Thomas B. Rallings, Jr., and Robert W. Allen, Charlotte, for plaintiff.

Underwood, Kinsey & Warren, P.A. by C. Ralph Kinsey, Jr., and Richard L. Farley, Charlotte, for defendants.

LEWIS, Judge.

The record shows that on 17 May 1985 the parties entered into a contract for plaintiff to construct a house on defendants' land. The contract stated that "[t]he cost of the house will be figured on a cost plus 10% basis with a ceiling of $186,880.00" Plaintiff began construction around 10 June 1985 and continued construction through 2 March 1987. Several changes and additions were made to the contract after plaintiff began construction. Plaintiff alleged that the costs of construction and his contractor's fee totalled $237,259.01. Defendants paid plaintiff $154,553.60.

When the contract was executed and plaintiff began construction, plaintiff held a limited general contractor's license with a limitation of $175,000.00. On 17 July 1985, plaintiff obtained an unlimited license.

Plaintiff seeks to recover in excess of $82,705.41 plus interest and seeks a lien on defendants' property. In their counterclaim, defendants seek at least $49,329.57 for damages resulting from plaintiff's alleged breach of the construction contract. In a judgment captioned "PARTIAL SUMMARY JUDGMENT" the trial court dismissed plaintiff's claims with prejudice and ordered plaintiff's claim of lien cancelled. Defendants' counterclaim remains. Plaintiff appeals.

Plaintiff's sole assignment of error is to the signing and entry of judgment. Where the only question presented is whether the trial court erred in granting summary judgment, no other exceptions or assignments of error are necessary. Ellis v. Williams, 319 N.C. 413, 355 S.E.2d 479 (1987); Vernon, Vernon, Wooten, Brown & Andrews, P.A. v. Miller, 73 N.C.App. 295, 326 S.E.2d 316 (1985). Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c). Our review is limited to deciding whether the trial court properly concluded that there is no genuine issue of material fact and that defendants are entitled to judgment as a matter of law. Ellis, supra. We have reviewed the record before us and determine that defendants are not entitled to the judgment entered as a matter of law.

In Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327 (1983), our Supreme Court adopted the rule that "a contract illegally entered into by an unlicensed general construction contractor is unenforceable by the contractor. It cannot be validated by the contractor's subsequent procurement of a license." Id. at 586, 308 S.E.2d at 331. Thus, a contract entered into by an unlicensed contractor is illegal and unenforceable. In Sample v. Morgan, 311 N.C. 717, 319 S.E.2d 607 (1984), a contractor with a $125,000.00 limited license entered into a construction contract for $115,967.81. The contractor and the homeowner agreed to changes and additions to the contract and the final construction cost was over $130,000.00. The Supreme Court specifically rejected previous cases that had denied recovery of any amount for contractors who exceed the amount of their license and allowed the contractor to recover an amount not to exceed the limit of his license. The Court stated that "until [the contractor] exceeded the allowable limit of his license, he was not acting in violation of G.S. [Section] 87-10." Id. at 723, 319 S.E.2d at 611.

In this case, plaintiff was licensed up to...