Jennings Glass Co., Inc. v. Brummer

362 S.E.2d 578 (1987)

JENNINGS GLASS COMPANY, INC. v. Harry BRUMMER. Harry BRUMMER v. JENNINGS GLASS COMPANY, INC.

No. 8728SC300.

Court of Appeals of North Carolina.

December 15, 1987.

*581 Jackson, Jackson & Burrell, P.A. by Frank B. Jackson and Charles Russell Burrell, Hendersonville, for plaintiff-appellee/cross-appellant.

Adams, Hendon, Carson, Crow & Saenger, P.A. by George W. Saenger, Asheville, for defendant-appellant/cross-appellee.

*582 WELLS, Judge.

Defendant's first two assignments of error attack the trial court's denial of defendant's motions to continue dated 8 October 1986 and 21 October 1986, respectively. Rulings on motions to continue are addressed to the sound discretion of the trial court. Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976); State v. Williams, 51 N.C.App. 613, 277 S.E.2d 546 (1981). The trial court's ruling is not reviewable absent a manifest abuse of discretion. Williams, supra. N.C.Gen.Stat. § 1A-1, Rule 40(b) (1983) requires a showing of good cause on motion for a continuance. Shankle, supra. Whether the reasons asserted by movant sufficiently constitute good cause is left to the discretion of the trial court. Id. That constituting good cause must necessarily be determined from the facts of each case. Id.

In the case at bar, defendant asserts that the 10 October 1986 deposition of his own witnesses would delay his trial preparation thereby causing him prejudice. This assertion is without merit. Defendant should not have been prejudiced by surprise testimony by his own witnesses. On this ruling we defer to the trial court's judgment and overrule the assignment of error.

Defendant contends that his 21 October 1986 motion to continue was improperly denied. Again we disagree. Although defendant claimed serious illness, the trial court noted in response to defendant's absence at the hearing that defendant had only a little more than a week earlier appeared before the court which served to undermine the credibility of his claim. Moreover, defendant's failure to make a formal motion lent support to the trial court's ruling. Again, we defer to the trial court's discretion and overrule this assignment of error.

Defendant next assigns as error the trial court's grant of defendant's motion to consolidate when defendant was absent from the motion hearing. On its face, this states an absurd proposition. Defendant cannot now be heard to complain of the success of his own motion even if granted in his absence. Defendant contends further that he was prejudiced by the consolidation of his case with that of plaintiff's because the 22 October 1986 judgment effectively dismissed his action against plaintiff. This argument is likewise untenable. Whether the trial court should have treated his case as a compulsory counterclaim or a separate action would have no bearing on the dismissal of the defendant's case. This assignment is overruled.

Defendant's fourth assignment of error assails the trial court's admission of nine additional witnesses listed in the 8 October 1986 supplemental answer, asserting a violation of the 19 August 1986 order. However, defendant at no time prior to or during the trial objected to the testimony of these witnesses. Failure to object to the admission of evidence constitutes a waiver of the objection precluding an appeal of the matter. Spencer v. Spencer, 70 N.C.App. 159, 319 S.E.2d 636 (1984); N.C.Gen.Stat. § 8C, Rule 103(d) (1986); 1 Brandis, North Carolina Evidence, sec. 27, (2d Rev.Ed. 1982).

Defendant next contends that the evidence adduced at trial supports neither the findings of fact nor conclusions of law rendering the judgment improper. We believe otherwise.

N.C.Gen.Stat. § 1A-1, Rule 52 of the N.C.Rules of Civil Procedure requires a trial judge, sitting without a jury, to make specific findings of fact which support the conclusions of law, which, in turn, support the judgment. See City of Statesville v. Roth, 77 N.C.App. 803, 336 S.E.2d 142 (1985) and cases cited and relied upon therein. On appeal, the trial court's findings are conclusive if they are supported by competent evidence even where there exists some evidence to the contrary. Id. Although we have before us a narrative of the trial proceedings in lieu of a transcript (submitted by the consent of both parties), we conclude that the evidence and testimony contained therein overwhelmingly support the trial court's findings in all respects. The only error we note is one of *583 mathematics regarding the amount of the judgment award. The trial court made correct findings regarding the amounts owed plaintiff but failed to carry this through to the judgment. The judgment should be amended to reflect an award of $50,448.75($70,048.75 less $19,600.00).

By six assignments of error, defendant complains that the award is not based on the contract on which this suit is brought. Claiming that an express contract precludes recovery in quantum meruit, reasonable value of services rendered, defendant argues that the plaintiff is limited to a recovery of the contract price only. Keith v. Day, 81 N.C.App. 185, 343 S.E.2d 562 (1986); Elec-Trol, Inc. v. Contractors, Inc., 54 N.C.App. 626, 284 S.E.2d 119 (1981), rev. denied, 305 N.C. 298, 290 S.E.2d 701 (1982). We disagree. In the present case, plaintiff and defendant had agreed, by subsequent oral and some written modifications, upon additional work for an increased cost. The court found that plaintiff had in fact done the work requested by defendant (work not contemplated in the original contract) which entitled plaintiff to the value of his written contract plus the value of the additional services provided under the modifications. See Industrial & Textile Piping v. Industrial Rigging, 69 N.C.App. 511, 317 S.E.2d 47, disc. rev. denied, 312 N.C. 83, 321 S.E.2d 895 (1984). These assignments are overruled.

Defendant likewise argues that the punitive damages award was not supported by the evidence. In an action for breach of contract where there exists tortious conduct accompanied by aggravating circumstances, punitive damages may be awarded. Newton v. Insurance Co., 291 N.C. 105, 229 S.E.2d 297 (1976). Punitive damages are also available where fraud is found. Stone v. Martin, 85 N.C.App. 410, 355 S.E.2d 255 (1987). Inasmuch as the trial court, based upon numerous findings of fact, concluded that defendant had defrauded plaintiff, all supported by substantial evidence, an award of punitive damages was appropriate.

Defendant correctly points out that the judgment directing the sale of defendant's property pursuant to N.C.Gen.Stat. § 44A-13 (1984) is improper. To enforce a materialman's lien, the judgment must contain a general description of the property and state the effective date of the lien. Miller v. Lemon Tree Inn, 32 N.C.App. 524, 233 S.E.2d 69 (1977). Moreover, the amount recoverable under the lien is limited to the amount claimed in the initial claim, or as here $42,648.00. N.C.Gen.Stat. § 44-13(b). However, because plaintiff pursued this recovery by filing both a claim of lien and this present action, and has at all times maintained its request for a lien in its complaint and appeal, the judgment relating back and incorporating the complaint and claim of lien includes all the information required under Miller, supra, except the effective date of the lien. Plaintiff should not be barred from the benefits of a remedy by the trial court's failure to include in its judgment the beginning and ending dates of the work.

The trial court is instructed on remand to amend the judgment to reflect the effective date of the lien. The judgment must also reflect the limit of $42,648.00, the amount stated in the claim of lien.

Plaintiff cites as error the trial court's refusal to find that the facts supported a claim under N.C.Gen.Stat. § 75-1.1 (1985). We agree with plaintiff and reverse and remand for an amendment to the judgment.

N.C.Gen.Stat. § 75-1.1 declares unlawful the "... unfair or deceptive acts or practices in or affecting commerce." The facts which give rise to a Chapter 75 claim necessarily depend on the circumstances of each case and the impact the act(s) or practice(s) has on the marketplace. Marshall v. Miller, 302 N.C. 539, 276 S.E.2d 397 (1981). The statute protects not only individual consumers, but businesses as well. Concrete Service Corp. v. Investors Group, Inc., 79 N.C.App. 678, 340 S.E.2d 755, cert. denied, 317 N.C. 333, 346 S.E.2d 137 (1986). Proof of fraud necessarily constitutes a violation of G.S. § 75-1.1. Whether the facts found give rise to a *584 Chapter 75 claim is a matter of law to be determined by the trial court, fully reviewable on appeal. Hardy v. Toler, 288 N.C. 303, 218 S.E.2d 342 (1975). Once a Chapter 75 violation is shown, trebling of damages is automatic. Marshall v. Miller, supra; Hardy v. Toler, supra.

Our Supreme Court has determined that the concept of unfairness, as contemplated by Chapter 75 "... is broader than and includes the concept of `deception.' [1974] 2 Trade Reg.Rep. (CCH) § 7521. A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers." (Cites omitted). Johnson v. Phoenix Mut. Life Ins. Co., 300 N.C. 247, 266 S.E.2d 610 (1980).

In the present case, the trier of fact specifically found that defendant "routinely engaged in a pattern of deceitful and misleading practices whereby he secured the services and materials of various businesses and contractors to his benefit, including the plaintiff, without payment of just compensation by the defendant and without the intent to pay just compensation." In effect, the trial court found that defendant engaged in a variety of activities which, in this case, leads unerringly to a Chapter 75 claim. We therefore hold that plaintiff is entitled to have its actual damages trebled and to an appropriate award of attorney's fees. As we noted in Mapp v. Toyota World, Inc., 81 N.C.App. 421, 344 S.E.2d 297, rev. denied, 318 N.C. 283, 347 S.E.2d 464 (1986), a plaintiff in a case such as this is not entitled to recover both punitive damages and treble damages under G.S. § 75-16. We treat plaintiff's appeal as an election to recover treble damages under a Chapter 75 claim. On remand, the judgment shall be amended to correctly reflect plaintiff's actual damages of $50,448.75. The award of punitive damages shall be stricken, and plaintiff's actual damages shall be trebled. An appropriate award of attorney's fees shall be made.

Because we have decided plaintiff's appeal in its favor, we need not reach plaintiff's arguments regarding the composition of the Record on Appeal.

Affirmed in part, vacated in part, and remanded with instructions.

JOHNSON and COZORT, JJ., concur.