Weaver's Asphalt & Maint. Co. Inc v. Cecil Williams D/b/a Ct Williams Constr. Co
| Decision Date | 01 March 2011 |
| Docket Number | NO. COA10-585,No. 09 CVS 206,09 CVS 206,COA10-585 |
| Court | North Carolina Court of Appeals |
| Parties | WEAVER'S ASPHALT & MAINTENANCE COMPANY, INC., Plaintiff, v. CECIL WILLIAMS d/b/a CT WILLIAMS CONSTRUCTION CO., C. T. WILLIAMS CONSTRUCTION, LLC, HEATON CONSTRUCTION, INC., and HANOVER INSURANCE COMPANY, Surety, Defendants. |
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Appeal by Defendants Cecil Williams d/b/a CT Williams Construction Co. and C.T. Williams Construction, LLC from judgment entered 20 November 2009 by Judge Quentin T. Sumner in Nash County Superior Court. Heard in the Court of Appeals 16 November 2010.
Rountree and Boyette LLP, byCharles S. Rountree, for Plaintiff-Appellee.
W. Michael Spivey for Defendant-Appellants Cecil Williams d/b/a CT Williams Construction Co. and C.T. Williams Construction, LLC.
Moseley, Elliott & Dickens, L.L.P., by Bradley A. Elliott, for Defendant-Appellees Heaton Construction, Inc. and Hanover Insurance Company.
Defendants Cecil Williams d/b/a CT Williams Construction Co. and C.T. Williams Construction, LLC (hereinafter Williams) appealfrom judgment ordering Williams to pay breach of contract damages to Weaver's Asphalt & Maintenance Company, Inc. (Plaintiff) and to Co-Defendant Heaton Construction, Inc. (Heaton) on its cross-claim, and awarding attorney's fees in favor of Plaintiff. For the following reasons, we affirm in part and remand in part.
On or about 9 March 2007, the Town of Spring Hope (Town) entered into a general construction contract with Heaton to build the Spring Hope Town Hall (Project). Surety Defendant, Hanover Insurance Company (Hanover), delivered to the Town a Payment Bond securing general contractor Heaton's performance of its contract with the North Carolina municipality. By written first tier subcontract agreement, Heaton subcontracted the Project's site work to Williams. Such site work was to include demolition of the existing building; construction of a retaining wall, steps, and handicap ramp to the new building; installation of sidewalks, a curb and guttering; grading and parking lot paving; and landscaping. On 2 February 2008, Williams subcontracted the paving work to Plaintiff by written second tier subcontract agreement, which limited Plaintiff's responsibilities to paving the parking lot with asphalt. Whereas Williams was responsible for grading the parking area, the second tier paving subcontract specified that "[n]o grading [was] to be done by [Plaintiff]" and that Plaintiff would "[n]ot [be] responsible for any drainage issues due to improper grading." Other provisions addressed the tonnage of surface asphalt included in the subcontract and noted that extra charges would be incurred if additional asphalt were required "dueto improper grading issues." Plaintiff further promised to furnish labor and materials for $13,000.00, due upon completion of the paving job, and later agreed to install asphalt for a drive-up window ramp for an additional $2,000.00.
Plaintiff began paving the parking lot and the drive-up window ramp on 12 February 2008 and completed its work on the Project pursuant to the paving subcontract on 15 February 2008. By invoice delivered 18 February 2008, Plaintiff billed Williams for an undisputed total of $16,245.00, which included the original contract price, the additional work, and asphalt overages. The terms noted on the invoice required payment to be made within ten days, with a "1 Service Charge Thereafter" to be applied as monthly interest until paid. Remaining unpaid for its work, Plaintiff served its notice of a lien upon funds to the Town and to Heaton on 10 April 2008 and sent the notice to Williams by certified mail. And on 4 December 2008, Hanover acknowledged its receipt of Plaintiff's claim under the Payment Bond securing Heaton's work as general contractor on the Project. As of the date of trial in this matter, however, Plaintiff had not been paid any sum for its work under the paving subcontract. While Williams explained that "he did not get paid by Heaton" as grounds for not paying Plaintiff, Hanover contended that it refused to pay anything to Plaintiff before its suretyship liability was determined.
Heaton's failure to pay Williams was related to several issues arising from allegedly faulty site work, including the grading being too high, which resulted in draining problems associated withthe parking lot, and deviations from specifications in constructing the entrance steps and handicap ramp to the new building, which resulted in deficient function and appearance. Demolition of the steps, ramp, and a substantial portion of the parking lot was required to allow for step replacement, repair and modification of the ramp, and the design and installation of additional drainage facilities to remedy the drainage problems caused by improper grading. Heaton ultimately "backcharged" Williams the sums of $25,640.00 and $27,432.49 for expenses incurred in correcting the problems related to improper grading and the steps, respectively.
On 30 January 2009, Plaintiff commenced this action against Williams, Heaton, and Hanover, seeking breach of contract damages and, or in the alternative, recovery under the surety bond, the statutory contractor's lien, or under the doctrine of unjust enrichment. Heaton filed a cross-claim against Williams for breach of contract, and Hanover cross-claimed to recover from Williams any sums it might be ordered to pay Plaintiff by virtue of its Payment Bond. Williams' answer included a cross-claim against Heaton for breach of contract, citing Heaton's refusal to pay sums owed for Williams' site work on the Project. Following a bench trial conducted at the 2 November 2009 Civil Session of Nash County Superior Court, the trial court entered judgment in favor of Plaintiff, ordering Williams to pay Plaintiff $22,207.85 with 1 monthly interest from 1 November 2009 until paid, and in favor of Heaton, entitling Heaton to recover against Williams $13,838.46. The trial court's judgment also required Hanover to pay all sumsowed Plaintiff in accordance with the Payment Bond and entitled Hanover to recover that same amount from Williams. From this judgment, Williams appeals.
When reviewing the judgment from a bench trial, "our standard of review is whether there is competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment." Town of Green Level v. Alamance Cty., 184 N.C. App. 665, 668-69, 646 S.E.2d 851, 854 (2007) (citation omitted). Rule 52(a) of the North Carolina Rules of Civil Procedure requires a trial judge sitting without a jury "to (1) find the facts on all issues joined in the pleadings; (2) declare the conclusions of law arising on the facts found; and (3) enter judgment accordingly." Powers v. Tatum, 196 N.C. App. 63 9, 648, 676 S.E.2d 89, 95 (citation omitted), disc. review denied. 363 N.C. 583, 681 S.E.2d 784 (2009); see also N.C. Gen. Stat. § 1A-1, Rule 52(a) (2009).
The facts required to be found are the ultimate facts established by the evidence which are determinative of the questions involved in the action and essential to support the conclusions of law reached. The requirement is designed to dispose of the issues raised by the pleadings and to permit a reviewing court to determine from the record whether the judgment—and the legal conclusions which underlie it—represent a correct application of the law. The court's findings of fact are conclusive on appeal if supported by competent evidence, even though there may be evidence to the contrary.
Id. at 648-49, 676 S.E.2d at 95 (internal quotation marks and citations omitted).
Williams argues that the trial court erred by not making any findings of fact addressing whether Plaintiff and Heaton failed to mitigate any loss or damage resulting from the breach of contract by Williams. We disagree.
Failure to mitigate damages, as Williams concedes, is an affirmative defense, see, e.g., Elm St. Gallery, Inc. v. Williams, 191 N.C. App. 760, 762, 663 S.E.2d 874, 875 (2008) (); Kotis Props., Inc. v. Casey's, Inc., 183 N.C. App. 617, 623, 645 S.E.2d 138, 142 (2007) (), which must be alleged in an answer or risk waiving the argument, see, e.g., Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998) (). Williams' answer did not raise the affirmative defense of failure to mitigate damages. Moreover, entirely absent from Williams' list of contested issues to be tried by the trial court, attached as an exhibit to the order on final pre-trial conference, was any mention of the mitigation of damages issue. Finally, although Williams claims that substantial evidence introduced at trial was directed at the issue of whether Plaintiff or Heaton should have informed Williams of the grading problems before proceeding with paving, such testimony was neither framed as a mitigation of damages argument nor applied to any discussion of that defense. Accordingly, the affirmative defense of failure to mitigate damages was not tried by consent, either express or implied, and the trial court had no occasion to make findings related thereto. See Nationwide Mut. Insur. Co. v. Edwards, 67 N.C. App. 1, 6, 312 S.E.2d 656, 660 (1984) (...
To continue reading
Request your trial