NO. COA13-827
NORTH CAROLINA COURT OF APPEALS
Filed: 4 March 2014
ELIZABETH R. BOTTS,
Plaintiff,
v. Durham County
No. 10 CVS 002576
MARK DAVID TIBBENS and ALICIA
TIBBENS,
Defendants.
Appeal by defendant Mark Tibbens from Judgment entered 7
February 2013 by Judge Michael Rivers Morgan in Superior Court,
Durham County, and from Order entered 9 March 2012 by
Judge Paul G. Gessner in Superior Court, Durham County. Heard
in the Court of Appeals 9 January 2014.
Berman & Associates, by Gary K. Berman, for plaintiff-
appellee.
Cheshire & Parker, by D. Michael Parker, for defendant-
appellant.
STROUD, Judge.
Mark Tibbens (“defendant”) appeals from a judgment entered
on 7 February 2013 awarding Elizabeth Botts (“plaintiff”)
$32,331.72 for breach of contract and from an order granting
plaintiff’s motion for summary judgment on several affirmative
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defenses raised by defendant. We affirm both the summary
judgment order and the judgment.
I. Background
In 2000, defendant purchased a 61.7 acre tract of land in
Orange County. He later decided to subdivide the tract and, in
2007, signed an “Offer to Purchase and Contract” along with his
wife, Alicia Tibbens, and plaintiff, wherein plaintiff offered
to purchase 15 acres of land for $75,000. Plaintiff intended to
build a home for herself on the land, but first needed a septic
system installed. On 16 January 2008, the parties closed on
their land purchase agreement and entered into a “Septic System
Installation Agreement.” Defendant’s wife did not sign the
installation agreement. In the installation agreement, defendant
agreed to “install the septic system” for plaintiff’s property
and he agreed to “be responsible for all labor and job
supervision associated with the installation.” Plaintiff agreed
to supply all necessary materials, rental equipment, and fuel
for the project up to $10,000. Defendant agreed to be
responsible for costs in excess of $10,000.
Defendant began the process of installing the septic system
by consulting with others in the business and arranging for
plaintiff’s system to be designed and engineered by Summit
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Consulting, PLLC. Summit began its portion of the work in March
2008 and finished around February 2010. In February 2010,
defendant’s attorney sent plaintiff a letter informing her that
defendant was not a licensed contractor and that, as a result,
he could not lawfully construct her septic system. It further
asserted that the installation agreement was unenforceable and
void. In response, plaintiff hired a septic company to install
her system. The new company charged her $33,500 for its
services.
On or about 9 March 2010, plaintiff filed a complaint
against defendant and his wife alleging breach of contract and
seeking damages for breach of the installation agreement.
Plaintiff filed an amended complaint on 11 January 2011 adding a
claim of unjust enrichment against Alicia Tibbens. Defendant
answered, raising affirmative defenses of impossibility,
illegality, and laches. After discovery, plaintiff moved for
partial summary judgment on the affirmative defenses raised by
defendant. The trial court granted plaintiff’s motion by order
entered 9 March 2012, finding no genuine issue of material fact
and concluding that plaintiff was entitled to judgment as a
matter of law on the affirmative defenses.
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The case was tried on 17 and 18 December 2012 by the
superior court judge sitting without a jury. The trial court
entered its judgment, which contained findings of fact and
conclusions of law, on 7 February 2013. It found that defendant
had breached the installation agreement and that he owed
plaintiff $32,331.72 in damages for the total cost of her septic
system installation, $42,331.72, less the $10,000 she had agreed
to spend on it. The trial court found that plaintiff had failed
to prove that Alciia Tibbens was a party to the agreement and
that she should also be liable for the breach. Defendant filed
written notice of appeal to this Court on 5 March 2013.
II. Impossibility and Illegality
Defendant first contends that the trial court erred in
granting plaintiff’s motion for summary judgment on the defenses
of impossibility and illegality. We conclude that the trial
court correctly granted summary judgment to plaintiff on these
defenses because the installation agreement was neither illegal
nor impossible to perform.
A. Standard of Review
We review a trial court order granting or
denying a summary judgment motion on a de
novo basis, with our examination of the
trial court’s order focused on determining
whether there is a genuine issue of material
fact and whether either party is entitled to
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judgment as a matter of law. As part of that
process, we view the evidence in the light
most favorable to the nonmoving party.
Cox v. Roach, ___ N.C. App. ___, ___, 723 S.E.2d 340, 347 (2012)
(citation omitted), disc. rev. denied, 366 N.C. 423, 736 S.E.2d
497 (2013).
B. Analysis
Defendant argues that the trial court erred in granting
plaintiff’s motion for summary judgment on the defenses of
illegality and impossibility because the contract was illegal
and his performance impossible under N.C. Gen. Stat. § 90A-72,
which requires that a person installing a septic system be a
properly certified contractor.
The court is to interpret a contract
according to the intent of the parties to
the contract, unless such intent is contrary
to law. If the plain language of a contract
is clear, the intention of the parties is
inferred from the words of the contract.
When the language of the contract is clear
and unambiguous, construction of the
agreement is a matter of law for the court,
and the court cannot look beyond the terms
of the contract to determine the intentions
of the parties.
Williams v. Habul, ___ N.C. App. ___, ___, 724 S.E.2d 104, 111
(2012) (citations and quotation marks omitted). Defendant does
not contend that the contract is ambiguous or that there were
genuine issues of material fact. He simply disagrees with the
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trial court’s interpretation of the contract and its conclusion
that the statute does not prevent defendant from performing.
“[A]n agreement which violates a constitutional statute or
municipal ordinance is illegal and void.” Marriott Financial
Services, Inc. v. Capitol Funds, Inc., 288 N.C. 122, 128, 217
S.E.2d 551, 555 (1975); Carolina Water Service, Inc. of North
Carolina v. Town of Pine Knoll Shores, 145 N.C. App. 686, 689,
551 S.E.2d 558, 560 (2001) (“An agreement which cannot be
performed without violation of a statute is illegal and void.”),
disc. rev. denied, 354 N.C. 360, 556 S.E.2d 298 (2001).
Additionally, nonperformance may be excused for impossibility if
the performing party’s
performance is rendered impossible by the
law, provided the promisor is not at fault
and has not assumed the risk of performing
whether impossible or not. Moreover, in most
cases it must be shown that the event was
not reasonably foreseeable. Government
actions . . . may be a basis for a finding
of legal impossibility.
UNCC Properties, Inc. v. Greene, 111 N.C. App. 391, 397, 432
S.E.2d 699, 702 (1993), cert. denied, 335 N.C. 242, 439 S.E.2d
163 (1993).
Here, the only basis of illegality and impossibility
asserted by defendant is statutory—that he was not allowed to
construct a septic system for plaintiff because he was not a
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certified on-site wastewater contractor. We agree that N.C. Gen.
Stat. § 90A-72(a) requires that construction and installation of
“an on-site wastewater system” be performed by or under the
supervision of a properly certified contractor. See N.C. Gen.
Stat. § 90A-72(a) (2009); N.C. Gen. Stat. § 90A-81(d)(1) (2009)
(establishing that construction of an on-site wastewater system
without the proper certificate is a Class 2 misdemeanor). But
the parties’ contract did not require defendant to install the
septic system personally.
The contract provided, in relevant part:
1. Tibbens will install the septic system
for a residence on the property described in
Exhibit A attached hereto. Tibbens will be
responsible for all labor and job
supervision associated with the
installation.
2. Botts will provide all materials and
rental and fuel for any equipment necessary
for the installation of the septic system in
an amount not to exceed TEN THOUSAND AND
00/100 DOLLARS ($10,000.00).
3. In the event that the expense of
materials and rental and fuel for any
equipment exceeds TEN THOUSAND AND 00/100
DOLLARS ($10,000.00), then and in said
event, Tibbens shall be responsible for all
materials and rental of and fuel for any
equipment necessary for the installation of
the septic system in excess of TEN THOUSAND
AND 00/100 DOLLARS ($10,000.00).
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Nothing in the plain language of this contract requires
that defendant install the septic system personally or precludes
him from employing others to effect the installation. Instead,
the contract simply makes defendant responsible for the
installation. Indeed, the language making Tibbens “responsible
for all labor and job supervision associated with the
installation” (emphasis added) strongly suggests that hiring
others to assist in the performance of his contractual duties
was permitted. Defendant could have sub-contracted to a properly
licensed contractor to perform his contractual obligations.
Moreover, nothing prevented him from seeking an appropriate
contractor’s license in the two years between the signing of the
contract and the letter indicating his refusal to perform. That
defendant miscalculated the costs of performing his contractual
obligations does not make his performance impossible. See
Restatement (Second) of Contracts, § 261, cmt. d (1981) (“A mere
change in the degree of difficulty or expense due to such causes
as increased wages, prices of raw materials, or costs of
construction, unless well beyond the normal range, does not
amount to impracticability since it is this sort of risk that a
fixed-price contract is intended to cover. Furthermore, a party
is expected to use reasonable efforts to surmount obstacles to
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performance (see § 205), and a performance is impracticable only
if it is so in spite of such efforts.”)
We conclude that the contract does not require performance
by someone precluded by statute from performing. Therefore, we
hold the contract was not illegal and defendant’s performance
was not impossible. As a result, we affirm the trial court’s
order granting plaintiff’s motion for summary judgment on these
issues.
III. Damages
Defendant next argues that the trial court erred in
calculating plaintiff’s damages by including the cost of
engineering services which were not part of defendant’s
obligations under the contract.
In a bench trial in which the superior court
sits without a jury, the standard of review
is whether there was competent evidence to
support the trial court’s findings of fact
and whether its conclusions of law were
proper in light of such facts. Findings of
fact by the trial court in a non-jury trial
are conclusive on appeal if there is
evidence to support those findings. A trial
court’s conclusions of law, however, are
reviewable de novo.
Hinnant v. Philips, 184 N.C. App. 241, 245, 645 S.E.2d 867, 870
(2007) (citation and quotation marks omitted).
Damages are allowed for breach of contract
as may reasonably be supposed to have been
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in the contemplation of the parties when the
contract was made or which will compensate
the injured party for the loss which
fulfillment of the contract could have
prevented or the breach of it has entailed.
The party seeking damages must show that the
amount of damages is based upon a standard
that will allow the finder of fact to
calculate the amount of damages with
reasonable certainty.
J.T. Russell and Sons, Inc. v. Silver Birch Pond L.L.C., ___
N.C. App. ___, ___, 721 S.E.2d 699, 704 (2011) (citations,
quotation marks, and brackets omitted).
“While the amount of damages is ordinarily a question of
fact, the proper standard with which to measure those damages is
a question of law.” Olivetti Corp. v. Ames Business Systems,
Inc., 319 N.C. 534, 548, 356 S.E.2d 578, 586 (1987). Where a
contract has been breached,
[t]he injured party is entitled to full
compensation for his loss, and to be placed
as near as may be in the condition which he
would have occupied had the contract not
been breached. Generally speaking, the
amount that would have been received if the
contract had been kept and which will
completely indemnify the injured party is
the true measure of damages for its breach.
Troitino v. Goodman, 225 N.C. 406, 412, 35 S.E.2d 277, 281
(1945) (citations and quotation marks omitted).
Defendant does not challenge any of the trial court’s
findings of fact as unsupported by the evidence. He simply
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contends that the trial court erred in interpreting the contract
to include engineering services and including those costs in its
damages calculation, but does not argue that the standard used
by the trial court to award damages was otherwise erroneous.
The trial court found that the agreement made defendant
“responsible for the installation of the septic system.” It
further found that engineering services would be a necessary
part of the installation process and that defendant was aware of
that fact when he signed the contract. Indeed, defendant helped
arrange for Summit Consulting to provide the necessary
engineering services. Finally, the trial court found that, under
the agreement, defendant was “responsible for all costs
exceeding $10,000.” Defendant does not specifically challenge
any of these findings as unsupported by competent evidence. It
is clear from these findings that the trial court considered the
engineering services to be part of the “installation” portion of
the contract.
The trial court found that the total cost of completing the
project was $42,331.72, but reduced the damages award by
$10,000, because plaintiff had agreed to be responsible for
costs up to that amount. It therefore awarded plaintiff
$32,331.72. This amount, based on the uncontested findings by
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the trial court, was clearly aimed at putting plaintiff in the
same position as she would have been had defendant performed the
contract—she would spend up to $10,000 and a septic system would
be installed on her property appropriate for the house she was
constructing. We therefore affirm the trial court’s judgment and
damages award.
IV. Conclusion
We affirm the trial court’s order granting plaintiff’s
motion for summary judgment because the contract was not illegal
and it was not impossible for defendant to perform his
contractual obligations. Further, we affirm the trial court’s
judgment awarding plaintiff $32,331.72 in damages.
AFFIRMED.
Judges HUNTER, JR., Robert N. and DILLON concur.