TGC Dev., Inc. v Aegean Land Co

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA01-544 NORTH CAROLINA COURT OF APPEALS Filed: 16 July 2002 TGC DEVELOPMENT, INC., Plaintiff, v. Wake County No. 99 CVS 3101 AEGEAN LAND COMPANY, Defendant. _________________________________________________________________ TGC DEVELOPMENT, INC., Plaintiff, v. Nos. 99 CVS 3102 and 3103 ROCKY MOUNTAIN ENTERPRISES, Defendant. _________________________________________________________________ TGC DEVELOPMENT, INC., Plaintiff, v. No. 99 CVD 6579 (transferred to Superior) KEY WEST ENTERPRISES, Defendant. Appeal by defendants from judgment entered 21 August 2000 by Judge Stafford G. Bullock in Superior Court, Wake County. Heard in the Court of Appeals 12 March 2002. George B. Currin for plaintiff-appellee. Warren, Perry & Anthony, P.L.L.C., by Michael K. Perry and Fred B. Amos, II, for defendant-appellants. McGEE, Judge. -2TGC Development, Inc. (plaintiff) performs grading services. Between 21 April 1998 and 2 November 1998, plaintiff entered into an oral contract with R. A. Munns (Munns) to perform grading services for Aegean Land Company, Rocky Mountain Enterprises, and Key West Enterprises (collectively defendants). Plaintiff performed the grading work under the direction of Munns, an agent of defendants. Plaintiff did not have a general contracting license when it performed the grading work for defendants. After the completion of the work, plaintiff did not receive complete payment from defendants. seeking unpaid monies. 12 June 2000. plaintiff. Plaintiff filed suit against defendants The case was heard in a non-jury trial on The trial court entered judgment in favor of Defendants appeal from this judgment. I. Defendants argue the trial court erred in determining that Munns was a licensed general contractor hired by defendants to employ and supervise subcontractors, including plaintiff, for the construction of various residential projects. Munns was merely a project manager and Defendants contend plaintiff contracted directly with defendants; therefore, defendants contend plaintiff should be considered a general contractor for the purposes of N.C. Gen. Stat. § 87-1. We disagree. In a non-jury trial, on appeal, the standard of review for this Court "is whether there existed competent evidence to support the trial court's findings of fact and whether the findings support the conclusions of law and ensuing judgment. The trial judge acts -3as both judge and jury and resolves any conflicts in the evidence." G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107, 110, 362 S.E.2d 807, 810 (1987) (citations omitted). trial court "is empowered to assign weight presented at trial as it deems appropriate." In such case, the to the evidence Id. at 112, 362 S.E.2d at 811. The trial court determined that Munns was a general contractor and plaintiff was a subcontractor. Based on these findings, the trial court concluded plaintiff was not prohibited from recovering under N.C.G.S. § general contractor. 87-1 because plaintiff was not an unlicensed The trial court found 4. All grading services performed by Plaintiff for entities, either owned or managed by Sanford Bailey, were under the supervision and management of R. A. Munns. . . . 12. R. A. Munns hired the Plaintiff on behalf of the Defendants to provide grading services for each residential subdivision owned by defendants. 13. All pricing and estimated quantities for grading services were provided to Plaintiff by R. A. Munns. . . . 17. R. A. Munns' responsibilities, on behalf of Defendants, included, among other things, review of preliminary engineering plans, obtaining cost estimates from various subcontractors, hiring subcontractors for the project, preparation of construction schedules for the various subcontractors, construction supervision of subcontractors and review and approval of subcontractor's invoices for payment by the Defendants. 18. After the inception of the contracts, -4R.A. Munns directed numerous change orders for grading services performed by plaintiff at the residential projects. . . . 20. All construction activities, including grading, were under the direct supervision and management of R.A. Munns, a licensed general contractor by the State of North Carolina. . . . 22. With the exception of R. A. Munns, Plaintiff had no direct contact with the Defendants during its performance of grading services for the construction of residential lots. In general, for the purposes of N.C.G.S. § 87-1, "the principal characteristic distinguishing a general contractor from a subcontractor or other party contracting with the owner with respect to a portion of the project, or a mere employee, is the degree of control to be exercised by the contractor over the construction of the entire project." Helms v. Dawkins, 32 N.C. App. 453, 456, 232 S.E.2d 710, 712 (1977) (citations omitted), overruled on other grounds by Sample v. Morgan, 311 N.C. 717, 319 S.E.2d 607 (1984). The record in this case shows plaintiff entered into an oral contract with Munns to work on each of the grading projects, and Munns supervised the work performed by plaintiff. The trial court concluded Munns was a general contractor, and plaintiff was a subcontractor. findings by the There is evidence in the record to support the trial court, and conclusions of the trial court. error. II. these findings support the We overrule this assignment of -5Defendants next argue the trial court erred in entering judgment for plaintiff because plaintiff was an unlicensed general contractor and was prohibited from recovering on its contract. We disagree. In general, an unlicensed general contractor may not recover against an owner for breach of contract. See Furniture Mart v. Burns, 31 N.C. App. 626, 230 S.E.2d 609 (1976). discussed above, the trial court determined However, as plaintiff was a subcontractor on the residential projects in question. In Vogel v. Supply Co. and Supply Co. v. Developers, Inc., 277 N.C. 119, 13133, 177 S.E.2d 273, 280-82 (1970), our Supreme Court determined an unlicensed subcontractor is not subject to the requirements of N.C.G.S. § 87-1 and can recover on a breach of contract claim. Therefore, we overrule this assignment of error. III. Defendants next argue the trial court erred in determining that Munns supervised the work performed by plaintiff. However, as discussed above in Section I, the trial court made several findings of fact which indicate Munns was a supervisor over plaintiff's work. As there is competent evidence in the record to support these findings, these findings are binding on this Court. We overrule this assignment of error. Defendants' two remaining assignments of error are both premised on a finding that plaintiff was an unlicensed general contractor. Because we have determined plaintiff was a subcontractor and did not need a general contractor's license to -6perform the work required by the oral contract with Munns, we overrule these assignments of error. We affirm the trial court's judgment for plaintiff. Affirmed. Judges GREENE and CAMPBELL concur. Report per Rule 30(e).

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