An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-823
                       NORTH CAROLINA COURT OF APPEALS

                             Filed: 3 February 2015


JERRY WILSON and wife, DORIS
WILSON,

      Plaintiffs,

      v.                                      Jackson County
                                              No. 12 CVS 196
CONLEYS CREEK LIMITED PARTNERSHIP,
a North Carolina Limited
Partnership, and MICHAEL CORNBLUM,

      Defendants.


      Appeal by defendants from judgment entered 4 October 2013

by Judge Edwin G. Wilson, Jr. in Jackson County Superior Court.

Heard in the Court of Appeals 7 January 2015.


      Frank G. Queen, PLLC, by Frank G. Queen, for plaintiff-
      appellees.

      Shanahan Law Group, PLLC, by John E. Branch,                       III,   and
      Brandon S. Neuman, for defendant-appellants.


      STEELMAN, Judge.


      Where the trial court’s jury issues conformed to the North

Carolina     Pattern     Jury    Instructions,       and    were     sufficiently

comprehensive to resolve all factual controversies and to enable
                                             -2-
the trial court to enter judgment fully determining the cause,

the trial court did not err in declining to submit defendants’

proposed issues to the jury.                  Where defendants failed to make

arguments      on    the        proposed     instruction      on    breach     by   non-

performance, appellate review of that issue has been waived.

Where   there       was    no    evidence     in    the   record     to   support    the

proposed     instruction         on   prevention     of   performance,       the    trial

court did not err in declining to submit that instruction to the

jury.       Where there was evidence in the record that tended to

show that a substantial amount of work would need to be undone,

the trial court erred in declining to give defendants’ proposed

instruction     on        the    alternate     valuation      of    damages.        Where

defendants failed to sufficiently demonstrate that this error

prejudiced a substantial right, such error is harmless.

                     I. Factual and Procedural Background

       On 12 May 2008, Jerry and Doris Wilson (plaintiffs) and

Conleys      Creek    Limited         Partnership      (Conleys     Creek),     through

Conleys     Creek     president        Michael     Cornblum    (Cornblum),       entered

into    a     contract,         wherein      Conleys      Creek     would      construct

plaintiffs’     home.           The   home   was    built,    and    plaintiffs      took

occupancy on 11 September 2009.
                                      -3-
     On    26    March   2012,   plaintiffs    filed   a   complaint   against

Conleys Creek and Cornblum (collectively, defendants), alleging

breach of contract, breach of warranties, and negligence.                 On 25

May 2012, defendants filed their answer.

     On 17 September 2013, the matter came on for trial before

Judge Wilson and a jury.            During the jury charge conference,

defendants proposed issues to be submitted to the jury, and made

requests for jury instructions.               The trial court declined to

submit defendants’ requested jury issues and jury instructions

to the jury.1      Defendants objected.

     On 24 September 2013, the jury returned a verdict finding

that there was a warranty of workmanlike quality for the Wilson

home, that the warranty was breached, and that plaintiffs were

entitled    to    recover    the   sum   of    $200,000    as   damages    from

defendants.      The trial court entered judgment on this verdict on

4 October 2013.

     Defendants appeal.

                         II. Requested Jury Issues




1
  The trial court declined to instruct the jury on plaintiff’s
theory of negligence, holding that the evidence presented was
insufficient.
                                   -4-
    In their first argument, defendants contend that the trial

court erred in refusing to submit their requested jury issues to

the jury.   We disagree.

                         A. Standard of Review

    “[T]he trial court has wide discretion in presenting the

issues to the jury and no abuse of discretion will be found

where the issues are ‘sufficiently comprehensive to resolve all

factual controversies and to enable the court to render judgment

fully determining the cause.’” Murrow v. Daniels, 321 N.C. 494,

499-500, 364 S.E.2d 392, 396 (1988) (quoting Chalmers v. Womack,

269 N.C. 433, 435-36, 152 S.E.2d 505, 507 (1967)).

                               B. Analysis

    In plaintiffs’ complaint, plaintiffs alleged 32 separate

categories of alleged defects in defendants’ work on their home.

Plaintiffs raised an additional category of defects in their

responses to defendants’ first set of interrogatories.               In their

requested   jury   issues,    defendants     requested   that   the     court

submit to the jury five issues with respect to each of the 33

alleged defects.      The trial court declined to submit defendants’

requested   issues,    and   defendants    duly   objected.     On    appeal,

defendants contend that the trial court erred in not submitting

their requested issues to the jury.
                                -5-
    On the issue of breach of warranty of workmanlike quality,

the trial court instructed the jury as follows:

         The second issue reads: Did the defendants
         breach the implied warranty of workmanlike
         quality? You will answer this issue only if
         you have answered the first issue yes in
         favor of the plaintiff.     On this issue the
         burden of proof is on the plaintiff.        This
         means the plaintiff must prove by the
         greater weight of the evidence that the
         defendant    breached   the    implied    and/or
         express warranty of workmanlike quality.       A
         breach   occurs if the       dwelling is not
         constructed    sufficiently   free   of    major
         structural defects and/or not constructed in
         a workmanlike manner so that it meets the
         standard    of    workmanlike    quality    then
         prevailing    at   the  time    and   place   of
         construction. Workmanlike manner means work
         done with the ordinary care customarily used
         by skilled workmen under the same or similar
         circumstances.

         So as to this second issue on which the
         plaintiff has the burden of proof, if you
         find by the greater weight of the evidence
         that the defendant breached the implied
         and/or   express   warranty  of   workmanlike
         quality, then it would be your duty to
         answer this issue yes in favor of the
         defendant.   If, on the other hand, you fail
         to so find, it would be your duty to answer
         this issue no in favor of the defendant.

    The language of this instruction comported with the North

Carolina Pattern Jury Instruction on implied warranties in the

sale of dwellings.   N.C.P.I. Civil 747.20.
                                          -6-
       The factual issues to be resolved by the jury were (1)

whether there was a warranty of workmanlike quality; (2) if so,

whether defendants breached that warranty; and (3) if so, what

amount were plaintiffs entitled to recover as monetary damages.

The trial court had broad discretion in submitting these issues

to the jury, provided that its instructions were “sufficiently

comprehensive to resolve all factual controversies and to enable

the court to render judgment fully determining the cause.”                     We

have previously held that, where the trial court provides the

jury with the Pattern Jury Instructions, it “provide[s] the jury

with   an    understandable      explanation      of   the   law.”     Henry   v.

Knudsen, 203 N.C. App. 510, 519, 692 S.E.2d 878, 884 (2010)

(citation omitted).

       The trial court’s issues were “sufficiently comprehensive

to resolve all factual controversies and to enable the court to

render judgment fully determining the cause[,]” and we hold that

it   did    not   err    in   declining    to   submit   defendants’   proposed

issues to the jury.

       This argument is without merit.

                        III. Requested Jury Instructions
                                         -7-
      In their second argument, defendants contend that the trial

court     erred      in    refusing    to   submit        their        requested      jury

instructions to the jury.           We disagree.

                             A. Standard of Review

      “When     reviewing     the     refusal   of    a    trial       court    to    give

certain instructions requested by a party to the jury, this

Court must decide whether the evidence presented at trial was

sufficient to support a reasonable inference by the jury of the

elements of the claim. If the instruction is supported by such

evidence, the trial court’s failure to give the instruction is

reversible error.” Ellison v. Gambill Oil Co., 186 N.C. App.

167, 169, 650 S.E.2d 819, 821 (2007) (citations omitted), aff’d

per curiam and disc. review improvidently allowed, 363 N.C. 364,

677 S.E.2d 452 (2009).

      “No error in either the admission or exclusion of evidence

and no error or defect in any ruling or order or in anything

done or omitted by any of the parties is ground for granting a

new   trial     or   for    setting    aside    a    verdict      or    for    vacating,

modifying, or otherwise disturbing a judgment or order, unless

refusal    to     take     such   action    amounts       to   the       denial      of   a

substantial right.”         N.C. R. Civ. P. 61.

                                    B. Analysis
                                    -8-
     Defendants     made   specific       written     requests        for   jury

instructions,     requesting    instructions         on     breach     by   non-

performance (N.C.P.I. Civil 502.00), the defense of prevention

by   plaintiff    (N.C.P.I.    Civil      502.20),        and    an   additional

instruction on the measure of damages (N.C.P.I. Civil 503.21).

Defendants also requested additional language be added to the

prevention   instruction:      “A   party     who     is        prevented   from

performance is not liable for damages if his full performance

was prevented by the other party.”            Defendants also requested

additional language be added to the damages instruction:

          "In either a breach of contract or a breach
          of warranty (whether express or implied),
          there are two methods of measuring damages
          for defects in construction of a house: (1)
          the cost of repairs required to bring the
          home into compliance with the warranty or
          contract, and (2) the difference between the
          value of the home as warranted or contracted
          for and its value as actually built.

          The "cost of repairs" method is applied when
          the   defects   can  be   corrected  without
          substantial destruction of any part of the
          home, and the "value" method is applied when
          a substantial part of what has been done
          must be undone.

          Damages are to be determined as of the date
          of breach. In a construction defect case,
          the date of breach is the date the general
          contractor delivers possession of the home
          to the owner.     In this case, defendant
          Conleys   Creek  Limited  Partnership,  the
          general contractor, delivered possession of
                                -9-
         the Wilson home to the plaintiffs, Jerry
         Wilson and Doris Wilson, on September 11,
         2009.

         If you find that the proper measure of
         damages is the "value" method, then you must
         find that the plaintiffs are only entitled
         to nominal damages, because the plaintiffs
         produced no evidence as to the value of the
         Wilson home on September 11, 2009.

         If you find that the proper measure of
         damages is the cost of repair method, the
         damages must be determined with reasonable
         certainty for each alleged defect as of
         September   11,  2009.      Since plaintiffs
         produced no evidence of damages for each
         alleged defect on September 11, 2009, you
         must then only give nominal
         damages for each alleged defect.”

    Defendants      contend   that    each   of    these   requested

instructions was supported by evidence.      We note that defendants

have failed to make any argument with respect to the proposed

instruction on breach by non-performance, and this argument is

deemed abandoned.   N.C. R. App. P. 28(b)(6).

                    1. Prevention of Performance

    With respect to the proposed instruction on prevention of

performance, defendants contend that the evidence in the record

showed that plaintiffs failed to notify defendants of defects,

and that as a result defendants, unaware of the defects, were

prevented from making necessary repairs.          Defendants cite to

Raleigh Paint and Wallpaper Co. v. Rogers Builders, Inc., 73
                                          -10-
N.C.    App.    648,     327    S.E.2d     36     (1985),     in    support      of    this

argument.

       We hold that the facts of Raleigh Paint are inapposite.                          In

Raleigh Paint, the builder was actively barred entry to the

premises.        In    the     instant   case,     however,        defendants     do    not

contend      that     they   were     refused     entry;      rather,     they     merely

contend that plaintiffs failed to notify them of some of the

defects.        We    note     that    the      record    contains      more     than    42

photographs      of    the     alleged    defects        taken     by   plaintiffs      and

submitted to defendants.              Jerry Wilson testified as to several

conversations he had with Cornblum regarding the alleged defects

shown   in     the    photographs;       Wilson    stated        that   Cornblum      “knew

[about the defects].            He saw it. . . . He disregarded it.”                    The

evidence in the record suggests that defendants had notice of

the alleged defects, not that defendants were denied notice and

access.

       An    instruction        on    prevention         of   performance       was     not

supported by the evidence, and the trial court did not err in

declining to give the instruction.

                                      2. Damages

       With respect to the proposed instruction on damages, the

trial court instructed the jury:
                               -11-
         The plaintiff may also be entitled to
         recover actual damages. On this issue, the
         burden of proof is on the plaintiff. This
         means the plaintiff must prove by the
         greater weight of the evidence the amount of
         damages sustained as a result of the breach.
         A person damaged by a breach of warranty is
         entitled to be placed, insofar as that can
         be done by money, in the same position he
         would have occupied if there had been no
         breach of the warranty.

         In determining the damages, you may award
         the   plaintiff   the    reasonable    costs   of
         repairs necessary to make the Wilson home
         meet the standard of workmanlike quality
         prevailing   at   the    time    and   place   of
         construction.   To    this   amount,    add   all
         incidental and consequential damages, if
         any, sustained by the plaintiff. Incidental
         and     consequential       damages       include
         expenditures    reasonably      made     by   the
         plaintiff   in   preparing    to    perform   the
         contract, expenditures reasonably made by
         the plaintiff in response to the defendant's
         breach, expenditures reasonably made by the
         plaintiff for the purpose of minimizing the
         injury   resulting     from   the     defendant's
         breach, and any other loss resulting from
         the plaintiffs' circumstances of which the
         defendant knew or should have known at the
         time of the contracting and which the
         plaintiff    could     not    reasonably     have
         prevented.

    Defendants contend that the trial court was obligated to

instruct the jury on both the “cost of repairs” method of damage

valuation, which it did, and on the “difference in value” damage

valuation, which it did not.    Defendants’ proposed instruction,

which involved the “difference in value” measure of damages, is
                              -12-
found in North Carolina Pattern Jury Instruction 503.21, which

provides that the cost of repairs is to be the primary valuation

of damages, but follows, in relevant part:

         However, if you find that this corrective
         work would be economically unreasonable to
         perform under the circumstances, a different
         measure of damages will apply. . . .

         If you find that the corrective work
         proposed    by    the    plaintiff  would  be
         economically unreasonable to perform under
         these circumstances, then you will determine
         the plaintiff's direct damages, if any, as
         follows: First, you will determine the fair
         market value of the (describe improvement)
         as actually constructed by the defendant on
         [the date that (describe events constituting
         breach)] [(specify date)]. Second, you will
         determine    the    fair   market  value  the
         improvement would have had if it had been
         constructed     in    conformity   with   the
         requirements of the contract.

         . . .

         Third, you will subtract the fair market
         value   of   the  improvement   as  actually
         constructed from the fair market value of
         the improvement as contracted for.      [The
         difference would be the plaintiff's direct
         damages.]   [The difference less any portion
         of the contract price which the plaintiff
         has not paid to the defendant would be the
         plaintiff's direct damages.]

         If, on the other hand, you find that it is
         not economically unreasonable under the
         circumstances to perform the corrective
         work, then the plaintiff would be entitled
         to recover the reasonable cost of labor and
         materials (and other costs) necessary to
                                         -13-
               correct the work to bring the improvement
               into conformity with the requirements of the
               contract.)]

N.C.P.I. Civil 503.21 (emphasis added).                 The instruction makes

clear that “loss in value” damage valuation should be considered

only where repairs would be unfeasible.

    Defendants cite to cases suggesting that the trial court

was nonetheless required to instruct the jury on both methods of

damage computation.            Defendants cite to Robbins v. C.W. Meyers

Trading Post, Inc., 251 N.C. 663, 666-67, 111 S.E.2d 884, 887

(1960), in which our Supreme Court held that, where defendants’

evidence showed that the work could be repaired, but plaintiffs’

evidence tended to show that a substantial amount of work needed

to be undone, both instructions were appropriate to be submitted

to the jury.         In that case, the Supreme Court remanded for a new

trial.

    In    the        instant   case,    David   Day,   a   general   contractor,

testified       as    an   expert   witness     for    plaintiffs.        Day    had

inspected plaintiffs’ house, and prepared a report.                      On cross-

examination, Day testified that he recommended “a substantial

amount    of    repair     work[.]”       He    specifically    testified       that

repairs     would       “require    a    substantial       destruction    of     the

[plaintiffs’] home[.]”           He went on to testify about areas of the
                                           -14-
home    that    required      immediate      correction.             With    respect      to

repairs to one structural support, for example, he testified

that:

               First   thing  you   would    do   is install
               temporary support on each side of the column
               that   would   support    the    beam  that's
               supporting the load. Then once you have the
               load taken off of the column shown in the
               picture and off of the footing, then what
               you would do is you would be able to
               excavate the foundation that's there that's
               a minimum kind of foundation, and you would
               put in a new foundation that's 24 inches
               square and 12 inches deep with reinforcing
               steel.   That's installed at the depth that
               it needs to be to be on solid soil.

       Day’s     testimony      described          areas      that     would       require

substantial      rebuilding     and    excavation        of    the    house,       with   an

emphasis on the urgency of such repairs.                      Where the work to be

done    includes    substantial       tasks       like   excavating         the   existing

foundation and building a new one, we hold that it is clear that

a   substantial     amount     of    the    original       construction           work    was

required to be undone.               Accordingly, we hold that the trial

court erred in failing to give the requested instruction on the

alternate valuation of damages.

       However,    despite     our    holding       of   error,      defendants      still

have    the     burden   of    showing       that    this      error    prejudiced         a

substantial right.         N.C. R. Civ. P. 61; see also Word v. Jones,
                                    -15-
350 N.C. 557, 565, 516 S.E.2d 144, 148 (1999) (holding that

“erroneous jury instructions are not grounds for granting a new

trial unless the error affected a substantial right”).

    Defendants contend on appeal that they were prejudiced by

the fact that the jury was unable to consider each category of

defect as a separate issue.         As we held in section II of this

opinion, it was not error for the trial court to decline to

instruct   the   jury   on   each   issue   separately;   we   hold   that

defendants were not prejudiced in this manner.            Defendants do

not allege any other substantial right or source of prejudice.

Accordingly, pursuant to Rule 61 of the North Carolina Rules of

Civil Procedure, we hold the trial court’s error in declining to

issue the requested instruction on damages was harmless.

    This argument is without merit.

    NO PREJUDICIAL ERROR.

    Judges ELMORE and INMAN concur.

    Report per Rule 30(e).
