Vignola v. Apogee Construction Company, No. COA06-559 (N.C. App. 3/6/2007)

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Unpublished Opinion

FRANK VIGNOLA and wife PHYLLIS M. VIGNOLA, Plaintiffs, v. APOGEE CONSTRUCTION COMPANY, Defendant.

No. COA06-559

Court of Appeals of North Carolina.

Filed March 6, 2007

This case not for publication

Carteret County No. 03 CVS 1328.

Appeal by defendant from judgment entered 12 October 2005 by Judge Benjamin G. Alford in Carteret County Superior Court. Heard in the Court of Appeals 16 November 2006.

Harvell and Collins, P.A., by Wesley A. Collins and Amy C. Shea, for plaintiffs-appellees.

Wheatly, Wheatly, Weeks, Valentine & Lupton, P.A., by Claud R. Wheatly, III, for defendant-appellant.

JACKSON, Judge.

On or about 25 April 2002, Frank and Phyllis Vignola ("plaintiffs") and Apogee Construction Company ("defendant") entered into a contract for the construction of a single-family residential dwelling located in Carteret County, North Carolina, at a sum of $175,495.20. The contract contained a warranty that "all construction, labor, materials and other services on the building [would] be accomplished in a workmanlike manner," and defendant delivered to plaintiffs an additional Contractor's Warranty Guarantee providing that "the material and workmanship shall be free from defects" and agreeing to make necessary repairs at no additional cost to plaintiffs during the first year of occupancy.

Within one year of completion of the dwelling, plaintiffs discovered problems with the construction, and on 26 November 2003, plaintiffs filed suit against defendant for breach of contract and express warranty, breach of implied warranty of workmanlike construction, and negligent construction. Specifically, plaintiffs alleged twenty-five defects that included the following: permanently-affixed light fixtures that were substantially off-center; a garage floor that had large cracks and lacked proper expansion joints and as a result, water seeped through the cracks; several exterior doors that did not open and close properly; a driveway that was sloped toward the house causing water to collect at the front of the house; shelving in multiple closets and cabinets in the kitchen that were not adequately secured to the walls; certain walls that were cracking; numerous ceramic floor tiles inside the house that were cracking; and sliding glass doors at the back of the house that leaked and did not open and close properly.

On 28 September 2005, the jury returned a verdict in favor of plaintiffs in the amount of $49,000.00. Judgment was filed on 12 October 2005, and defendant filed timely notice of appeal on 4 November 2005.

On appeal, defendant contends that the trial court erred: (1) in allowing plaintiffs' expert, Howard Rigsby, to testify concerning North Carolina Building Code violations when he was unaware that Carteret County had not adopted certain indices and appendices to the North Carolina Building Code; (2) in refusing to allow defendant to point out to the jury certain details on the plans and specifications during cross-examination after plaintiffs had shown the plans and specifications to the jury; (3) in allowing Edward Butler, Jr. to give certain testimony when he was found not to be an expert; (4) in failing to incorporate the portion of North Carolina Pattern Jury Instructions, Civil 503.21, setting forth the requirement for the jury to determine, when calculating damages, whether the corrective work would be economically unreasonable to perform; (5) in charging on incidental damages when there was no evidence concerning incidental damages; and (6) in refusing to give a definition of "workmanlike manner."

As a preliminary matter, we note that defendant has failed to provide the applicable standard of review for any of its assignments of error. Rule 28(b)(6) of the Rules of Appellate Procedure provides that

[t]he argument shall contain a concise statement of the applicable standard(s) of review for each question presented, which shall appear either at the beginning of the discussion of each question presented or under a separate heading placed before the beginning of the discussion of all the questions presented.

N.C. R. App. P. 28(b)(6) (2006). Defendant has neither stated nor provided citation for the applicable standards of review, either at the beginning of each question presented or under a separate heading. This rule violation alone could be fatal to defendant's appeal. See State v. Summers, ___ N.C. App. ___, ___, 629 S.E.2d 902, 908 (declining to address one of the defendant's arguments when he failed to include a statement of the applicable standard of review), appeal dismissed and disc. rev. denied, ___ N.C. ___, 637 S.E.2d 192 (2006). Nevertheless, we choose to order defendant's counsel to pay the printing costs of this appeal pursuant to Rule 34(b). See Caldwell v. Branch, ___ N.C. App. ___, ___, 638 S.E.2d 552, 555 (2007). We therefore instruct the Clerk of this Court to enter an order accordingly.

Additionally, with respect to defendant's second question presented, identified as its fifth assignment of error, defendant has provided no substantive argument and merely makes the conclusory statement that

[t]he Plaintiff[s] offered evidence with the expert witness and the Court refused to allow the Defendant to have the witness to [sic] show the details on the plans and specifications to the jury as to what they actually showed. Moreover, the plans and specifications were an integral part of the contract.

Defendant does not identify the "details" to which it is referring, but instead, defendant proceeds to argue that Edward Butler, witness for plaintiffs, improperly testified to matters more properly described by an expert witness. Specifically, defendant contends that "[Butler] should have been qualified as an expert witness," and that allowing Butler to provide cost estimates was akin "to allowing a paralegal working for an attorney to come to court and give expert opinion rather than using the attorney for whom he/she works or is employed." This argument, however, falls squarely within defendant's third question presented, identified by assignments of error numbered eight, nine, ten, eleven, and twelve. Defendant offers no substantive argument in support of its fifth assignment of error, and this alleged error is not mentioned in the brief. See N.C. R. App. P. 28(b)(6) (2006). Without any legal argument to support the second issue in defendant's brief, this Court has no way of evaluating defendant's contention, and "[i]t is not the role of the appellate courts . . . to create an appeal for an appellant." Viar v. N.C. Dep't of Transp., 359 N.C. 400, 402, 610 S.E.2d 360, 361 (per curiam), reh'g denied, 359 N.C. 643, 617 S.E.2d 662 (2005). Accordingly, defendant's second argument is dismissed.

Proceeding to the merits of defendant's appeal, defendant contends in its first argument that the trial court erred in allowing Howard J. Rigsby to testify concerning North Carolina Building Code violations when he admittedly was unaware that Carteret County had not adopted certain indices and appendices to the North Carolina Building Code. We disagree.

Howard Rigsby ("Rigsby") received his bachelor's degree in mechanical engineering from North Carolina State University in 1996, and he received his master's degree in engineering in 2001. He worked as an engineer for Accident Reconstruction Analysis, Inc., a forensic engineering firm. The majority of Rigsby's work was spent on building construction, both residential and commercial. A licensed engineer and general contractor, Rigsby had over ten years experience inspecting residential homes and had inspected over fifty homes in Carteret County alone. Rigsby personally visited plaintiffs' house on 22 October 2004, and after documenting his findings with photographs, field notes, and measurements, Rigsby compiled his findings and conclusions in a report.

After plaintiffs' counsel offered Rigsby as an expert, the jury was removed from the courtroom, and defense counsel conducted voir dire of Rigsby. During voir dire, defense counsel questioned Rigsby as to his knowledge of the North Carolina Building Code and its applicability in Carteret County. The court explained to counsel several times that "[t]his doesn't have anything to do with his qualification as an expert. You can ask him about his educational background, his experiences and those things." The questioning of the witness, however, devolved into a debate between defense counsel and the trial court over the applicability in Carteret County of certain appendices of the North Carolina Building Code. The court explained its position that Carteret County did not have the authority to opt out of certain portions of a state wide code, yet defense counsel continued to question the witness on the issue. The court reiterated that

[w]e're not going to go through cross-examination of this man about his knowledge of the building code, okay.

You can save that for when the jury's in here and go through on cross-examination. We're only talking about his qualifications to be tendered and accepted by the Court as an expert.

. . . .

I think there will be proper subject of grist for the cross-examination mill, but as far as criteria for his expertise, I don't think it has anything to do with that.

It is not clear from defendant's brief whether or not defendant contends that it was error for the trial court to find that Rigsby qualified as an expert. However, it is well-established that "[a] finding by the trial judge that the witness qualifies as an expert is exclusively within the discretion of the trial judge and is not to be reversed on appeal absent a complete lack of evidence to support his ruling." Hill v. Williams, 144 N.C. App. 45, 53, 547 S.E.2d 472, 477, disc. rev. denied, 354 N.C. 217, 557 S.E.2d 531 (2001). Here, Rigsby was qualified to testify as an expert based on his knowledge, skill, experience, training, and education, and his background therefore made him better...