Asheville School v. DV Ward Const., Inc.

337 S.E.2d 659 (1985)

The ASHEVILLE SCHOOL v. D.V. WARD CONSTRUCTION, INC., and Bankers Mortgage Corporation d/b/a Bamocor, Inc.

No. 8528SC557.

Court of Appeals of North Carolina.

December 31, 1985.

*661 Morris, Golding, Phillips & Cloninger by James N. Golding and John C. Cloninger, Asheville, for plaintiff-appellant.

Van Winkle, Buck, Wall, Starnes and Davis, P.A. by Marla Tugwell, and Roberts, Cogburn, McClure and Williams by Frank Graham, Asheville, for defendant-appellee D.V. Ward Const., Inc.

Russell, Greene & King, P.A. by William E. Greene, Asheville, for defendant-appellee Bankers Mortg. Corp. d/b/a Bamocor, Inc.

WHICHARD, Judge.

Plaintiff contends the court erred by granting defendants' motions for judgment notwithstanding the verdict on the issue of breach of contract. We disagree. Without addressing whether plaintiff may bring an action against these particular defendants, we find that plaintiff's action for breach of contract is barred by N.C. Gen.Stat. 1-52(1), the three year statute of limitations, and N.C.Gen.Stat. 1-52(16), which provides that in an action for physical damage to claimant's property "the cause of action ... shall not accrue until... physical damage to [claimant's] property becomes apparent or ought reasonably to have become apparent to the claimant, whichever event first occurs."

Our Supreme Court recently addressed the precise issue raised. In Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 329 S.E.2d 350 (1985), plaintiff had contracted with defendants to construct an industrial plant. Plaintiff filed an action in 1981 alleging that faulty construction had caused the roof to leak. The court held that N.C.Gen.Stat. 1-52(1), (16) barred the action as a matter of law. It reasoned:

The plaintiff ... first complained of leaks in the roof within two months after occupying its newly built facility. The undisputed facts show that further complaints about leaks in many spots in the roof were made over five consecutive months in 1976 and 1977. These complaints clearly show that plaintiff, although perhaps not aware of the extent of damage, knew that its roof was defective at least as early as April 1977. The statute of limitations does not require plaintiff to be a construction expert. See Earls v. Link, Inc., 38 N.C.App. 204, 208, 247 S.E.2d 617, 619 (1978). However, it does require that plaintiff not sit on its rights. Plaintiff, knowing of the existence of leaks in the roof, was put on inquiry as to the nature and extent of the problem. Plaintiff failed to inform itself of the nature and extent of the roof's defects when leaks were discovered and recurred repeatedly. Viewing the evidence in a light most favorable to plaintiff, there is nothing in the record which would indicate that plaintiff was unaware that its roof was defective until a point in time within three years prior to filing suit.

313 N.C. at 493, 329 S.E.2d at 354.

Plaintiff here concedes that it was aware in early 1975 that the gym roof had begun to leak. Plaintiff made repeated complaints about leaks in many places over the next three years and thereafter. These complaints clearly show that plaintiff knew its roof was defective at least as early as sometime in 1977, even if it was not aware of the extent of the damage. Knowing of the leaks, plaintiff was obligated to inform itself of the nature and extent of the roof's defects. As in Pembee, "there is nothing in the record which would indicate that plaintiff was unaware that its roof was defective until a point in time within three years prior to filing suit." Pembee at 493, 329 S.E.2d at 354.

Plaintiff contends defendants are estopped from raising the statute of limitations because defendant D.V. Ward repeatedly promised to repair the roof and assured plaintiff that everything was fine. However, these "[a]ssurances ... fade[d] in the face of repeated ..." leaks in the roof. Blue Cross and Blue Shield v. Odell Associates, 61 N.C.App. 350, 358, 301 *662 S.E.2d 459, 463-64, disc. rev. denied, 309 N.C. 319, 306 S.E.2d 791 (1983). "Subsequent [leaks in the roof were] ample evidence that the problem was a recurring one." Id. As in Blue Cross, plaintiff "slept on its rights until the opportunity to bring suit had expired[,]" and its estoppel argument is therefore without merit. Id.

Assuming, arguendo, that plaintiff's amended complaint against D.V. Ward of 25 July 1983 relates back to the original complaint filed 11 June 1981, the action is still barred as to both defendants by N.C. Gen.Stat. 1-52(1), (16), the three year statute of limitations. Accordingly, the court did not err by granting defendants' motions for judgment notwithstanding the verdict on the issue of breach of contract.

Plaintiff next contends the court erred by granting D.V. Ward's motion for directed verdict on the issue of negligent roof repairs. We disagree.

"To overcome the motion for directed verdict plaintiff was `required to offer evidence sufficient to establish, beyond mere speculation or conjecture, every essential element of negligence.'" Sasser v. Beck, 65 N.C.App. 170, 171, 308 S.E.2d 722, 722-23 (1983), disc. rev. denied, 310 N.C. 309, 312 S.E.2d 652 (1984). "The basic elements of negligence are a duty owed by [defendant] to plaintiff and nonperformance of that duty, proximately causing injury and damage." Id.

"`[W]here actual pecuniary damages are sought, there must be evidence of their existence and extent, and some data from which they may be computed.'" Norwood v. Carter, 242 N.C. 152, 156, 87 S.E.2d 2, 5 (1955), quoting 25 C.J.S. 496. "Damages are never presumed." Lieb v. Mayer, 244 N.C. 613, 616, 94 S.E.2d 658, 660 (1956). "The burden is always upon the complaining party to establish by evidence such facts as will furnish a basis for their assessment, according to some definite and legal rule." Id. See also SNML Corp. v. Bank, 41 N.C.App. 28, 38, 254 S.E.2d 274, 280, disc. rev. denied, 298 N.C. 204 (1979).

Here plaintiff presented evidence of damages resulting from the failure to complete the gym in accordance with the original plans and specifications. It did not, however, offer any evidence of damages resulting from improper repairs to the roof after completion. There was neither evidence of the difference in the market value of the gym before and after the repairs nor evidence of the cost of repairs to the roof. See Plow v. Bug Man Exterminators, 57 N.C.App. 159, 162-63, 290 S.E.2d 787, 789, disc. rev. denied, 306 N.C. 558, 294 S.E.2d 224 (1982). Since there was no basis for assessing actual damages, plaintiff did not satisfy its evidentiary burden and could not obtain them.

Plaintiff could seek nominal damages, however. Such damages are recoverable in negligence actions. Jewell v. Price, 264 N.C. 459, 461, 142 S.E.2d 1, 3 (1965). Failure to submit the issue of negligent repairs to the jury when only nominal damages are available, however, is not prejudicial and reversible error, since nominal damages are a trivial sum awarded in recognition of a technical rather than a substantial injury. Marisco v. Adams, 47 N.C. App. 196, 198, 266 S.E.2d 696, 698 (1980).

For the reasons stated, we find no error. The result reached renders consideration of plaintiff's evidentiary arguments unnecessary.

No error.

HEDRICK, C.J., and JOHNSON, J., concur.