Court of Appeals of North Carolina, 1984

Sample v. Morgan

Sample v. Morgan
Court of Appeals of North Carolina · Decided February 7, 1984 · Braswell, Eagles, Hedrick
66 N.C. App. 338; 311 S.E.2d 47; 1984 N.C. App. LEXIS 2885

Sample v. Morgan

Opinion of the Court

HEDRICK, Judge.

Plaintiff first contends “the trial court committed reversible error in granting defendants’ motion to amend their answer.” Plaintiff recognizes the well-established rule that a motion to amend “is addressed to the sound discretion of the trial judge,” Smith v. McRary, 306 N.C. 664, 671, 295 S.E. 2d 444, 448 (1982) (citation omitted), but contends that the court’s action in the instant case constitutes an abuse of discretion. We disagree, noting that plaintiff has failed to identify any prejudice resulting from the court’s ruling in this regard. This assignment of error is overruled.

Plaintiff next contends that “the trial court committed reversible error in setting aside the verdict and granting defend*340ants’ motion for judgment notwithstanding the verdict.” The un-controverted evidence discloses that plaintiff, a contractor, seeks to recover on a contract for construction of defendants’ house an amount in excess of the statutory limitations of his contractor’s license. The rule is clear that a contractor who violates statutory licensing requirements may not enforce a construction contract against an owner. Builders Supply v. Midyette, 274 N.C. 264, 162 S.E. 2d 507 (1968). Plaintiff seeks to escape imposition of this rule, however, by invoking the doctrine of “substantial compliance” most recently recognized in Barrett, Robert & Woods v. Armi, 59 N.C. App. 134, 296 S.E. 2d 10, disc. rev. denied, 307 N.C. 269, 299 S.E. 2d 214 (1982). The theory of “substantial compliance” relied on by plaintiff has been specifically and emphatically rejected by our Supreme Court in Brady v. Fulghum, 309 N.C. 580, 308 S.E. 2d 327 (1983). On this record plaintiff cannot collect more than $125,000.00 on his contract with defendants.

Affirmed.

Judge Braswell concurs. Judge EAGLES dissents.

Dissenting Opinion

Judge EAGLES

dissenting.

I respectfully dissent. I would reverse the judgment notwithstanding the verdict allowed by the trial court and would permit the jury verdict to stand. I am cognizant of the recent decision of our Supreme Court in Brady v. Fulghum, 309 N.C. 580, 308 S.E. 2d 327 (1983), rejecting the doctrine of substantial compliance as a vehicle for salvaging claims of unlicensed contractors. Though relied upon by the majority, that case is not dispositive of the question here.

In the case sub judice, the general contractor was licensed at all times in dispute, without interruption. His license authorized him to enter and perform construction contracts having a value of up to $125,000. Before entering the contract with plaintiff, defendants altered their originally submitted plans and specifications by eliminating certain features from the original plans to reduce the estimated cost from the initial estimated cost of $130,000 to an *341estimated cost for the house of $115,000, a figure well within the authorized license limits of plaintiff. The contract entered into called for the work to be performed on a cost plus ten percent basis which was estimated to be $115,000. The evidence shows clearly and in detail that the increase in cost from the $115,000 estimated cost was not due to any action of the plaintiff, save his acquiescence to defendants’ subsequently requested additions, extras, add on, and changes in the items specified to be included in the house. The house is conceded by all to be a well built and beautiful home. The fact that plaintiff acquiesced in defendants’ choices to have installed finer plumbing fixtures than originally called for, marble counter tops in lieu of those originally called for, a finer and more expensive type of carpeting than the original carpet allowance would permit and other changes while construction was in progress does not violate the language or spirit of Chapter 87 and its strictures. I would hold that a licensed general contractor has complied with Chapter 87 when the contractor is licensed throughout the negotiation, contracting and construction process, the estimated construction cost under the original contract is within the dollar limits of his license, and any subsequent variations from the plans and specifications of the original contract are at the initiation of the other party and are merely acquiesced in by the contractor.

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