Hall v. Simmons

407 S.E.2d 816, 329 N.C. 779, 1991 N.C. LEXIS 604
CourtSupreme Court of North Carolina
DecidedSeptember 5, 1991
Docket386PA89
StatusPublished
Cited by20 cases

This text of 407 S.E.2d 816 (Hall v. Simmons) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hall v. Simmons, 407 S.E.2d 816, 329 N.C. 779, 1991 N.C. LEXIS 604 (N.C. 1991).

Opinion

EXUM, Chief Justice.

The question before us is whether a contractor whose license expires during construction and is not renewed within the sixty days preceding invalidation pursuant to N.C.G.S. § 87-10 1 may recover the costs of materials and labor supplied during that period. We hold that he may.

In his complaint plaintiff alleged he had entered into an agreement with defendants on 24 June 1985 to provide labor and materials and to construct a residence for cost plus ten percent. Estimated cost was .$74,000. Plaintiff alleged he had initiated construction 18 June 1985 and in every respect had complied with the terms of his agreement with defendants. An attached claim of lien stated in addition that plaintiff had last furnished labor and materials on 7 February 1986. Plaintiff alleged that over the early course of construction defendants had paid him $48,000. He sued for the balance of $56,371.23 allegedly owed.

Defendants moved to dismiss under Rule 12(b)(6), asserting inter alia that plaintiff had failed to state a claim upon which relief could be granted respecting labor, services, and material furnished after 31 December 1985 because plaintiff was not in the business of a general contractor after that date, his license having expired.

Defendants’ answer and counterclaim alleged a breach of contract and consequential damages from plaintiff’s failure to construct according to plans and in a workmanlike manner. Defendants alleged the Construction Agreement, which was attached, was a fixed price contract for $74,000 with changes and extras at cost plus ten percent. Plaintiff responded with a motion to dismiss the counterclaim.

The trial court denied the parties’ motions to dismiss and denied defendants’ motion for partial summary judgment, concluding *781 that genuine issues of material fact remained as to plaintiff’s right to recover for labor and materials furnished after 31 December 1985.

At trial plaintiff’s evidence tended to show as follows:

Between June 1985 and February 1986 he expended $94,247.24 for labor, materials, and subcontractors’ work. Plaintiff’s contractor’s license, which expired on 31 December 1985, was not renewed on that date or within sixty days thereafter. The North Carolina Licensing Board for General Contractors received plaintiff’s application for license renewal on 14 April 1986 and renewed it.

At the close of plaintiff’s evidence defendants’ motion for a directed verdict on plaintiff’s claims for labor and materials furnished after 31 December 1985 was denied. When renewed at the close of all the evidence, the motion was likewise denied.

The trial court also denied defendants’ request for a jury issue as to what amount, if any, the contract price should be reduced because of costs attributed to labor and materials furnished after 31 December 1985. It denied as well a requested instruction that plaintiff could not recover for labor and materials furnished after that date.

Issues were submitted to and answered by the jury as follows:

1. Has the plaintiff, Roy Hall, fully performed his obligations arising out of the contract?
Answer: No.
2. Has the plaintiff, Roy Hall, substantially performed his obligations arising out of the contract?
Answer: Yes.
3. What amount is the plaintiff, Roy Hall[,] entitled to recover of the defendants for the amount arising out of the contract?
Answer: [$]103,671.96.
4. In what amount, if any, have the defendants, Simmons, been damaged by the failure, if any, of the plaintiff, Roy Hall, to fully perform his obligations arising out of the contract?
Answer: [$]3,000.00.

The trial court’s judgment, after giving credit to defendants for $3,000 damages and for $48,000 already paid, was for plaintiff *782 in the amount of $52,671.96 plus interest from 7 February 1986 until paid. Defendants’ motion for judgment notwithstanding the verdict and various other motions for relief from the judgment were all denied.

The Court of Appeals dismissed defendants’ appeal on 18 August 1989 for failure to file the proposed record on appeal within 150 days of notice of appeal, as required by N.C. R. App. P. Rule 12(a) prior to amendment effective 1 July 1989. 2 This Court granted defendants’ petition for writ of certiorari on 5 October 1989 to review the merits of the case.

The statute at issue, which governs the examination and licensing of contractors, provides that a contractor’s

[certificate of license shall expire on the thirty-first day of December following the issuance or renewal and shall become invalid 60 days from that date unless renewed, subject to the approval of the Board. Renewals may be effected any time during the month of January without reexamination, by the payment of a fee to the secretary of the Board .... Renewal applications received by the Board after January shall be accompanied by a late payment of ten dollars ($10.00) for each month or part after January. After a lapse of two years no renewal shall be effected and the applicant shall fulfill all requirements of a new applicant as set forth in this section.

N.C.G.S. § 87-10 (1989).

In Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327 (1983), this Court construed the predecessor to this section, which was identical to the current statute except for this sentence: “Certificate of license shall expire on the thirty-first day of December following the issuance or renewal and shall become invalid on that day unless renewed, subject to the approval of the Board.” N.C.G.S. § 87-10 (1981) (emphasis added). We recognized the legislative purpose of this statute “to guarantee ‘skill, training and ability to accomplish such construction in a safe and workmanlike fashion,’ ” Brady, 309 N.C. at 584, 308 S.E.2d at 330 (quoting Arnold Construc *783 tion Company, Inc. v. Arizona Board of Regents, 109 Ariz. 495, 498, 512 P.2d 1229, 1232 (1973)), and “to protect members of the general public without regard to the impact upon individual contractors.” Id. (quoting Urbatec v. Yuma County, 614 F.2d 1216, 1218 (9th Cir.) (applying Arizona law), cert. denied, 449 U.S. 841, 66 L. Ed. 2d 49 (1980)). We accordingly adopted a “bright line” rule requiring strict compliance with the licensing provisions of N.C.G.S. §§ 87-1 through 87-114. See Sample v. Morgan, 311 N.C. 717, 723, 319 S.E.2d 607

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Bluebook (online)
407 S.E.2d 816, 329 N.C. 779, 1991 N.C. LEXIS 604, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hall-v-simmons-nc-1991.