Opinion
NO. COA12-335
03-19-2013
GODON CONSTRUCTION, INC., Plaintiff v. PRIMO ENTERPRISES, LLC, Defendant
Chris Kremer for Plaintiff. Brown & Bunch, PLLC, by Charles Gordon Brown, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Lee County
No. 11 CVS 115
Appeal by plaintiff from order entered 16 December 2011 by Judge Marvin K. Blount in Lee County Superior Court. Heard in the Court of Appeals 30 August 2012.
Chris Kremer for Plaintiff.
Brown & Bunch, PLLC, by Charles Gordon Brown, for Defendant.
ERVIN, Judge.
Plaintiff Godon Construction, Inc., appeals from an order granting summary judgment in favor of Defendant Primo Enterprise, L.L.C. On appeal, Plaintiff alleges that the evidentiary materials contained in the record before the trial court revealed the existence of genuine issues of material fact concerning issues such as the existence of a written contract between the parties, the extent to which an oral modification of any contract between the parties had been made, and the extent to which Plaintiff's alternative quantum meruit claim had merit. After consideration of Plaintiff's challenges to the trial court's order in light of the record and the applicable law, we conclude that the trial court's order should be reversed and that this case should be remanded to the Lee County Superior Court for further proceedings not inconsistent with this opinion.
I. Factual Background
A. Substantive Facts
On 16 August 2009, Plaintiff, acting through its president, Kimberly Godon, executed a contract with Defendant under which Plaintiff agreed to renovate a "Commercial structure located at 1101-1109 Washington Avenue in Sanford, North Carolina." A number of plans, specifications, material descriptions, and other attachments were incorporated into the contract by reference, including a document containing a "List of Requirements as per Plan or Specification" designated as Attachment A and certain floor plans dated 11 August 2010. Among other things, the contract provided that, unless there were "additions and deductions by Change Order," the contract price was to be $75,000. According to Article 16 of the contract, all modifications to the parties' agreement had to be made pursuant to a purchase order signed by Defendant.
Mr. McBroom did not personally sign the contract. Instead, Coley A. Headen, who held an unrecorded power of attorney for Mr. McBroom, signed on his behalf.
After commencing work on the project, Plaintiff sent Defendant Invoice No. 09-143 in the amount of $23,200 on 20 October 2009, with this invoice relating to certain framing, sheetrock installation, plumbing, and HVAC work; Invoice No. 10-101 in the amount of $27,000 on 28 January 2010, with this invoice relating to the completion of work on certain portions of the building; and Invoice No. 10-110 in the amount of $24,800 on 20 April 2010, with this invoice relating to the completion of the required work. Also on 20 April 2010, Plaintiff sent Defendant Invoice No. 10-111 in the amount of $36,600, with this invoice relating to "additional work outside scope of original project to include furring out walls, sheetrocking walls, installing new concrete walkway, fabricating and installing handrails, planting shrubs for barrier, and installing gutters [and] downspouts," and Invoice No. 10-115 in the amount of $4,200 on 23 April 2010, with this invoice relating to "concrete and labor to remove old sideway and install new plus handicap ramp." According to Plaintiff's records, the total cost of the work performed on Defendant's building was "$115,530.56.
Mr. McBroom never signed a written change order authorizing the performance of additional work under the contract. Instead, Ms. Godon asserted in her deposition testimony and the first of her two affidavits that Defendant, through Mr. McBroom, had authorized the additional work reflected in the last two invoices orally. Although Defendant paid the initial three invoices and made an additional "good will" payment of $2,000 based on the fact that Plaintiff "did a really good job" during the renovation process, it declined to pay any additional amounts after receiving the last two invoices.
B. Procedural History
On 8 February 2011, Plaintiff filed a complaint seeking to recover compensatory damages from Defendant in the amount of $38,800 for breach of contract and, alternatively, on a quantum meruit theory. On 2 June 2011, Defendant filed an answer in which it denied the material allegations of Plaintiff's complaint and asserted the statute of frauds, satisfaction, and failure to satisfy a condition precedent as affirmative defenses. On 16 September 2011, Defendant filed a motion seeking summary judgment in its favor. During the course of the proceedings held in connection with the litigation of Defendant's summary judgment motion, Plaintiff filed two affidavits executed by Ms. Godon, one of which included certain relevant documents as exhibits, and Defendant filed two affidavits executed by Mr. McBroom, one of which also included certain relevant documents as exhibits. In addition, both Ms. Godon and Mr. McBroom were deposed during the discovery process. On 16 December 2011, the trial court entered an order granting summary judgment in favor of Defendant. Plaintiff noted an appeal to this Court from the trial court's order.
II. Legal Discussion
A. Standard of Review
We review a trial court's grant of summary judgment de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." N.C. Gen. Stat. § 1A-1, Rule 56(c). In reviewing an order granting summary judgment, our task is to "determine, on the basis of the materials presented to the trial court, whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law." Coastal Plains Util., Inc. v. New Hanover Cty., 166 N.C. App. 333, 340, 601 S.E.2d 915, 920 (2004) (citing Oliver v. Roberts, 49 N.C. App. 311, 314, 271 S.E.2d 399, 401 (1980), cert. denied, __ N.C. __, 276 S.E.2d 283 (1981). In undertaking the required review, this Court, like the trial court, "must view the presented evidence in a light most favorable to the nonmoving party." Dalton v. Camp, 353 N.C. 647, 651, 548 S.E.2d 704, 707 (2001) (citing Coats v. Jones, 63 N.C. App. 151, 154, 303 S.E.2d 655, 657, aff'd, 309 N.C. 815, 309 S.E.2d 253 (1983)). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. If the moving party makes the required showing, "the burden shifts to the nonmovant to adduce specific facts establishing a triable issue." Lunsford v. Renn, 207 N.C. App. 298, 304, 700 S.E.2d 94, 97 (2010) (citing S.B. Simmons Landscaping & Excavating, Inc. v. Boggs, 192 N.C. App. 155, 163-64, 665 S.E.2d 147, 152 (2008), and quoting Self v. Yelton, 201 N.C. App. 653, 658-59, 688 S.E.2d 34, 38 (2010)), disc. review denied, 365 N.C. 193, 707 S.E.2d 244 (2011) (quotation marks omitted). We will now utilize the applicable standard of review to evaluate the validity of Plaintiff's challenges to the trial court's order.
B. Substantive Legal Analysis
1. Validity of the Parties' Contract
In its first challenge to the trial court's order, Plaintiff argues that the record discloses the existence of a genuine issue of material fact concerning the extent, if any, to which there was a valid contract between the parties. More specifically, Plaintiff argues that the fact that Mr. Headen signed Mr. McBroom's name to the contract raises doubts about the validity of the parties' contract. We do not find Plaintiff's argument persuasive.
In the first section of its brief, Defendant argues that the contract between the parties constituted an agreement for the performance of the necessary renovation work for a fixed price. We do not, subject to its oral modification argument, understand Plaintiff to contend otherwise, so we will not address Defendant's discussion of the proper manner in which to construe the relevant contract provisions in any detail in this opinion.
As an initial matter, Plaintiff alleged in its complaint that a contract existed between the parties. According to Plaintiff's complaint, it entered into a contract with Defendant rather than with Mr. McBroom or Mr. Headen, acting in their individual capacities. Defendant admitted the existence of a contract between Plaintiff and Defendant in its answer and has never asserted that Plaintiff contracted with any other individual or entity. "A party is bound by [its] pleadings and, unless withdrawn, amended, or otherwise altered, the allegations contained in all pleadings ordinarily are conclusive as against the pleader," so that a party "cannot subsequently take a position contradictory to [its] pleadings." Davis v. Rigsby, 261 N.C. 684, 686, 136 S.E.2d 33, 34 (1964) (citing Universal C. I. T. Credit Corp. v. Saunders, 235 N.C. 369, 372, 70 S.E.2d 176, 178 (1952)). As a result, given that Plaintiff has alleged the existence of a contract and that Defendant has admitted the contract's existence, Plaintiff is not entitled at this point to argue that no contract between the parties existed.
Secondly, after a careful examination of the record, we are unable to discern the existence of any basis for believing that there was a genuine issue of material fact concerning the extent to which there was, in fact, a valid contract between the parties. In seeking to persuade us to reach a contrary result, Plaintiff relies on this Court's statement in Kaimowitz v. Duke Law Journal, 68 N.C. App. 463, 467, 315 S.E.2d 82, 84 (1984), to the effect that, "[b]ecause a genuine issue of material fact as to the existence of a contract between plaintiff and defendant is raised by the pleadings and plaintiff's affidavit, summary judgment for defendant was improper." We do not believe that the decision upon which Plaintiff relies has any bearing on the proper resolution of this case.
In Kaimowitz, the plaintiff and a representative of the defendant submitted conflicting affidavits concerning the extent, if any, to which the defendant verbally assured the plaintiff, who was submitting an article for publication by defendant, that he could list the pending article on his resume as a work to be published and that the article was of publishable quality. Id. at 464-65, 315 S.E.2d at 83. For that reason, the record before this Court in Kaimowitz revealed the existence of a legitimate factual dispute concerning the nature and extent of any contract into which the parties had entered. In this case, on the other hand, the fact that Mr. Headen signed the contract between the parties on behalf of Mr. McBroom pursuant to an unrecorded power of attorney has no tendency to show that the contract between the parties was invalid. As an initial matter, contrary to Plaintiff's suggestion, a power of attorney need not be recorded in order to be effective. Howard v. Boyce, 266 N.C. 572, 577, 146 S.E.2d 828, 832 (1966). In addition, the power of attorney under which Mr. Headen acted at the time that he signed Mr. McBroom's name on the contract between the parties specifically authorized Mr. Headen to exercise the authority under N.C. Gen. Stat. §§ 32A-2 and 32-27, including the authority to conduct business "[t]o the extent and upon such terms and conditions and for such periods of time as the fiduciary shall deem necessary or advisable, to continue or participate in the operation of any business or other enterprises," N.C. Gen. Stat. § 32-27(5); "to make contracts and to execute instruments, under seal or otherwise, as may be necessary in the exercise of the powers herein granted," N.C. Gen. Stat. § 32-27(10); and to "conduct, engage in, and transact any and all lawful business of whatever nature or kind for the principal." N.C. Gen. Stat. § 32A-2(6). The authority granted to Mr. Headen under the power of attorney executed in his favor by Mr. McBroom was clearly sufficient to authorize him to sign the contract between the parties on behalf of Defendant. As a result, given that the record provides no basis for questioning the validity of the parties' contract, Plaintiff's initial challenge to the trial court's order lacks merit.
In view of the fact that a valid contractual relationship existed between the parties, the fact that, for reasons stated later in this opinion, we have held that the record does not establish that Plaintiff's oral modification claim lacks merit, and the fact that there can be no recovery in quantum meruit when there is a valid contract between the parties, see Campbell v. Blount, 24 N.C. App. 368, 371, 210 S.E.2d 513, 516 (1975), we need not address any issues relating to Plaintiff's alternative quantum meruit claim at this time.
2. Oral Modification
Secondly, Plaintiff argues that the record discloses the existence of a genuine issue of material fact concerning whether the contract between the parties was orally modified to provide for the additional work reflected in Invoice Nos. 10-111 and 10-115. In support of the argument, Plaintiff relies on the fact that the affidavits submitted by Ms. Godon clearly stated that Defendant, through Mr. McBroom, requested the performance of additional work "that was outside the scope of the original contract" and argues that this request established the existence of a genuine issue of material fact concerning the extent, if any, to which the parties entered into a valid modification of their written agreement upon which Plaintiff is entitled to recover additional money from Defendant. We believe that Plaintiff's argument is, at least in part, meritorious.
According to the contract between the parties:
3.1. The Buyer shall pay the Contractor for the performance of the work, subject to additions and deductions by Change Order as provided in the Contract Documents, the Contract Sum of no greater than $75,000.00 for the renovations as described in the attached plans . . . .Defendant, "without invalidating the Contract, [was entitled to] order Changes in the Work consisting of addition, deletions, or modifications," with "the Contract Sum and the Contract Time being adjusted accordingly." However, "[a] written Purchase Order signed by [Defendant was needed to] authorize all such changes in the work" and "[o]nly a Purchase Order [could] change the Contract Sum." The undisputed record evidence establishes that Defendant never executed any written change orders authorizing the performance of additional work or a change in the overall contract price, so that Plaintiff has no basis for claiming, and does not appear to claim, that the additional charges reflected in Invoice Nos. 10-111 and 10-115 are due and owing under the contract between the parties as originally written. Instead, Plaintiff contends that Defendant is obligated to pay the additional monies that are at issue in this proceeding based upon one or more oral modifications to the contract between the parties.
As a general proposition, a "contract may be modified or waived by a subsequent parol agreement, or by conduct which naturally and justly leads the other party to believe the provisions of the contract have been modified or waived, even though the instrument involved provides that only written modifications shall be binding." Son-Shine Grading, Inc. v. ADC Constr. Co., 68 N.C. App. 417, 422, 315 S.E.2d 346, 349 (citing W.E. Garrison Grading Co. v. Piracci Constr. Co., 27 N.C. App. 725, 729, 221 S.E.2d 512, 515 (1975), disc. review denied, 289 N.C. 296, 222 S.E.2d 695 (1976)), disc. review denied, 312 N.C. 85, 321 S.E.2d 900 (1984). Although Mr. McBroom denied that either Plaintiff or Defendant had ever suggested that the contract be modified to provide for the performance of additional work, Ms. Godon asserted in her 19 October 2011 affidavit that such changes had been requested and approved. Although Ms. Godon's affidavit does, in fact, tend to establish that there is a genuine issue of material fact concerning the extent, if any, to which the parties orally agreed that Plaintiff would perform additional work on Defendant's behalf, Defendant urges us to reject Plaintiff's oral modification claim on the grounds that Ms. Godon's affidavit impermissibly contradicts other evidence and on the grounds that the additional work identified in Ms. Godon's affidavit was all within the scope of the work outlined in the initial agreement, so that the work upon which Plaintiff's oral modification claim is predicated was performed pursuant to the original contract rather than pursuant to any oral modification of that agreement.
Although Defendant correctly contends that Plaintiff may not create a genuine issue of material fact through the submission of an affidavit which contradicts its own witness' prior testimony, Wachovia Mortgage Co. v. Autry-Barker-Spurrier Real Estates, Inc., 39 N.C. App. 1, 9, 249 S.E.2d 727, 732 (1978), aff'd, 297 N.C. 696, 256 S.E.2d 688 (1979), we do not believe that the rule upon which Defendant relies has any application in this instance. A careful examination of Defendant's brief reveals that the "contradictions" upon which Defendant relies are (1) the fact that Plaintiff alleged in its complaint that Defendant made numerous change orders; (2) the fact that Plaintiff admitted that Defendant had never signed a written change order; (3) the fact that Ms. Godon's first affidavit reiterated the assertion that Defendant had requested the performance of additional work; and (4) the fact that Ms. Godon clearly stated that the request was oral in her second affidavit. We see no basis for concluding that Ms. Godon's assertion that Defendant orally requested the performance of additional work is in any way inconsistent with Plaintiff's pleadings or with Ms. Godon's assertions on other occasions. Plaintiff alleged in its complaint that Defendant requested the performance of additional work. The fact that Ms. Godon conceded that Defendant never executed a written change order is not inconsistent with her contention that Defendant orally requested the performance of additional work. The information provided in Ms. Godon's second affidavit concerning the manner in which Defendant requested the performance of additional work on its building, while more detailed than the information contained in her initial affidavit, is not in any way inconsistent with her earlier testimony. On the contrary, Ms. Godon specifically stated in her deposition that the change of work authorizations "must have" been worked out in "phone calls." As a result, we find no merit in Defendant's argument that the affidavit upon which Plaintiff relies should be disregarded as inconsistent with the evidence submitted by Plaintiff at an earlier time.
Although Defendant argues with some vigor that Plaintiff failed to show that it had ever agreed to orally modify the contract under which Plaintiff performed renovation work on Defendant's building, we are hard pressed to understand how the information contained in Ms. Godon's affidavit can mean anything other than that Plaintiff performed additional work on Defendant's building at Defendant's request. As a result, Defendant's suggestion that the record provides no basis for a conclusion that it agreed to the performance of the additional work lacks adequate support.
In support of its second challenge to the sufficiency of the evidence offered in support of Plaintiff's contention that the parties orally modified their contract to provide for the performance of additional work on Defendant's building, Defendant argues that, even if an oral agreement of the type described in Ms. Godon's affidavit had actually been made, such an agreement would be unenforceable unless "all the requisites of a contract [exist]," including "mutual assent to the modification, and consideration or a substitute supporting it." Altman v. Munns, 82 N.C. App. 102, 105, 345 S.E.2d 419, 422 (1986) (citing Yamaha Intern. Corp. v. Parks, 72 N.C. App. 625, 628-29, 325 S.E.2d 55, 57-58 (1985), and Clifford v. River Bend Plantation, Inc., 312 N.C. 460, 466, 323 S.E.2d 23, 27-28 (1984)). In essence, Defendant contends that, in the event that the additional work contemplated under the alleged oral modification was already required by the parties' contract, the oral modification was not supported by the consideration needed to render that oral modification enforceable. In re Foreclosure of Owen, 62 N.C. App. 506, 509, 303 S.E.2d 351, 353 (1983) (stating that "consideration is present when there is some benefit or advantage to the promisor or loss or detriment to the promisee") (citing Wolfe v. Eaker, 50 N.C. App. 144, 148, 272 S.E.2d 781, 783 (1980), disc. review denied, 302 N.C. 222, 277 S.E.2d 69 (1981)). As a result, the ultimate issue raised by this aspect of Defendant's defense of the trial court's order is whether the work contemplated under the alleged oral modification was or was not required under the parties' original agreement.
According to the parties' contract, Plaintiff was obligated to "renovat[e] a building located at 1101-1109 Washington Avenue" by "execut[ing] all labor associated with the specifications and blueprints provided" and "providing all necessary materials, labor, subcontractors and contract administration" so as to "complete the dwelling in accordance with submitted plans, specifications and attachments." According to the "List of Requirements as per Plan or Specification" appended to the contract as Attachment A, Plaintiff was obligated to provide:
• Separation of electrical wiring and new electric and meters per spaceIn addition, Article 2.1.1 of the contract provides that "[t]he Contractor shall complete the addition and have received the Certificate of Occupancy for the above-mentioned address within 120 days of the execution of this contract" and Article 5.1 of the contract provides that "Contractor may only submit a request for final payment once Antonio McBroom has issued a final inspection and the appropriate public authorities have issued a Certificate of Occupancy." As a result, it is clear from the relevant contractual language that Plaintiff would not have satisfactorily completed work under the contract unless and until Defendant received a certificate of occupancy relating to the building in question. On the other hand, Plaintiff's obligations under the contract were not unlimited, given that the agreement between the parties also provided that "[w]ork not covered in the Contract Documents will not be required unless it is consistent therewith and reasonably inferable therefrom as being necessary to produce the intended results."
• Plumbing fixtures, supply lines and drainage for bathrooms to city taps per space
• Light fixtures
• HVAC units and duct work per space
• Dry-in package - to include trusses, roof decking, roof material, soffits and fascia
• Demolition of existing damaged trusses and repair of trusses
• Store front windows
• Interior and exterior doors and frames
• Sheetrock for ceiling with textured finish
• Paint interior
• Build bathrooms per space
• Repair or rework walls per space
• Flooring material
• Paint exterior soffits and fascia
• Landscape for parking lot buffer
• Remove trees and grade for parking area
• 100' X 50' asphalt parking lot with painted spaces and handicap signs
According to Plaintiff's complaint, the additional work performed pursuant to the alleged oral modification included:
a. fur out all walls in preparation for sheetrock;In her affidavit, Ms. Godon described the additional work performed as a result of the alleged oral modifications a bit differently, stating that Plaintiff's claim for additional payment rested on costs
b. install sheetrock on all walls;
c. remove existing electrical conduit and wires installed on block walls and relocate inside walls for furred out sheetrock;
d. tear out existing electrical work performed by unlicensed contractor;
e. tear out sidewalk and pour new handicap sidewalk and ramp;
f. install a steel handrail the length of sidewalk and handicap ramp;
g. clean up garbage;
h. add gutters and downspouts to back of building;
i. block or brick in door and window openings and remove old doorways and windows; and
j. add 2 additional doors, frames and lock sets.
including furring out the interior walls, installing sheetrock, removing and replacing electrical work done by an unlicensed electrician hired by defendant before plaintiff started work, building a new concrete walkway with handicap ramp and handrail outside, adding gutters and downspouts, blocking in old door and window openings, and adding additional doors complete with frames and locks.An analysis of the record establishes that, as Defendant contends, many of the items listed in Plaintiff's description of the work performed pursuant to the alleged oral modifications involved work which Plaintiff was already obligated to perform. However, a few of the items of additional work listed in Plaintiff's complaint are not clearly encompassed within the work required by the parties' original contract.
As a result of the fact that the list of additional work set out in Plaintiff's complaint includes everything specified in Ms. Godon's affidavit, supplemented with an additional item or two, the discussion in the text will focus on the list of additional work set out in Plaintiff's complaint rather than upon the list contained in Ms. Godon's affidavit.
A number of the items contained in Plaintiff's specification of the additional work that was performed pursuant to the alleged oral modifications to the proposed contract were specifically mentioned in the relevant contract documents. For example, Item "g" in the list of additional work set out in Plaintiff's complaint requests payment for the "clean up [of] garbage" despite the fact that Article 9.8 of the parties' contract specifically required Plaintiff to "keep the premises free from accumulation of waste materials or rubbish on a daily basis" and to remove all "waste materials and rubbish from and about the project" by the time that the required work was completed. Similarly, despite the fact that Item "h" in the list of additional work set out in Plaintiff's complaint requests payment for the addition of "gutters and downspouts to [the] back of [the] building," Ms. Godon admitted in her deposition that the plans attached to the parties' contract made Plaintiff responsible for the provision of gutters and downspouts. In addition, Items "i" and "j" included in the list of additional work contained in Plaintiff's complaint refer to the blocking of windows and doors and the addition of two doors, respectively, both of which are reflected in the drawings attached to the parties' contract and, at least in part, in Attachment A to the contract. Thus, many of the items for which Plaintiff seeks additional compensation involved work which Plaintiff was already obligated to perform.
The same is true of other components of Plaintiff's list of additional work performed pursuant to the alleged oral modifications to the parties' contract. Item "c" as set out in the list of additional work specified in Plaintiff's complaint included the "remov[al of] existing electrical conduit and wires installed on block walls and relocat[ion of] inside walls for furred out sheetrock." Similarly, Item "d" in the list of additional work contained in Plaintiff's complaint included the "tear[ing] out [of] existing electrical work performed by unlicensed contractor." Finally, Item "e" in the additional work list involved the "tear[ing] out [of] sidewalk and pour[ing] new handicap sidewalk and ramp." However, Attachment A to the parties' contract specifically provided for "[s]eparation of electrical wiring and new electric and meters per space" and the provision of "100' x 50' asphalt parking lot with painted spaces and handicap signs." Moreover, according to Ms. Godon, the completion of the electrical work in question and the construction of the parking lot and sidewalk were required in order to obtain the issuance of a Certificate of Occupancy. Although the record does not indicate whether the construction of a wheelchair access ramp was required in order to obtain the issuance of a certificate of occupancy, the remaining actions specified in Items "c," "d," and "e" were required as a prerequisite for the issuance of a certificate of occupancy and, thus, mandated by the provisions of the parties' original contract.
Finally, the list of additional items of work contained in Plaintiff's complaint includes Item "a," which involves the "fur[ring] out [of] all walls in preparation for sheetrock;" Item "b," which involves the "install[ation of] sheetrock on all walls;" and Item "f," which involves the "install[ation of] a steel handrail the length of sidewalk and handicap ramp." Although Defendant contends that the work listed in Items "a" and "b" is listed in Attachment A to the original contract, which required Plaintiff to "repair or rework the walls . . . per space," we are unable to ascertain from the present record whether the language contained in the parties' original contract fully encompasses the furring out of all walls in preparation for the installation of sheetrock and the installation of sheetrock on all walls. Similarly, although Defendant asserts that the installation of the handrail mentioned in Item "f" was required in order to obtain the issuance of a certificate of occupancy, the email upon which Defendant relies in support of this assertion makes no reference to handrails. As a result, when the evidence is viewed in the light most favorable to Plaintiff, Dalton, 353 N.C. at 651, 548 S.E.2d at 707, we conclude that there is a genuine issue of material fact concerning the extent to which all or a portion of the work referenced in Items "a," "b," "e," and "f" was required as a precondition for compliance with the provisions of the original contract, a fact which precludes us from determining that Defendant was entitled to the entry of summary judgment on lack of consideration grounds. Builders Mut. Ins. Co., 361 N.C. at 88, 637 S.E.2d at 530.
Defendant also asserts that the handrail and the wheelchair ramp were required in order to render the building in compliance with the Americans with Disabilities Act. However, the record contains no evidence and Defendant's brief cites no law supporting this assertion. As a result, we will not presume the validity of this aspect of Defendant's argument subject to Defendant's right to revisit this issue at the appropriate time on remand.
In its brief, Defendant argues that the additional cost items which Plaintiff sought to recover were nothing more than cost overruns and did not relate to additional or new work stemming from oral modifications to the original contract between the parties. However, acceptance of this argument would require us to make credibility determinations, an inquiry which is not permissible in the context of appellate review of an order ruling on a summary judgment motion. Coble v. Coble, 300 N.C. 708, 712-13, 268 S.E.2d 185, 189 (1980). Defendant is, of course, free to advance this argument in the appropriate procedural context on remand.
III. Conclusion
Thus, for the reasons set forth above, we conclude that, although the contract between the parties is valid, the record discloses the existence of a genuine issue of material fact concerning the extent to which the parties entered into an enforceable oral modification of their contract under which Plaintiff would be entitled to be paid additional amounts of money for work performed upon Defendant's building. As a result, the trial court's order should be, and hereby is, reversed and this case should be, and hereby is, remanded to the Lee County Superior Court for further proceedings not inconsistent with this opinion.
On remand, Defendant should be provided ample opportunity to establish that the items of allegedly additional work about which we have found that there is a genuine issue of material fact are, in fact, required under the original contract or necessary to ensure the issuance of a certificate of occupancy through the provision of additional information. Plaintiff should not, however, be given an opportunity to recover additional costs associated with the cost items which we have found were, in fact, required by the provisions of the original contract or necessary to obtain the issuance of a certificate of occupancy given our determination that there was no genuine issue of material fact relating to Plaintiff's obligation to perform the work relating to those cost items based upon our analysis of the present record.
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REVERSED AND REMANDED.
Judges ROBERT N. HUNTER, JR. and MCCULLOUGH concur.
Report per Rule 30(e).