                                   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
                                          -2-
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
                                              -3-
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.
                                           -4-
       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
                                  -5-
         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
                                            -6-
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
                              -7-
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).
                                             -8-
       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
                                  -9-
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
                                         -10-
              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
                                             -11-
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
                                       -12-
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.
