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 plaintiffappellee.

Cheshire & Parker, by D. Michael Parker, for defendantappellant.

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.