An unpublished opinion of the North Carolina Court of Appeals does not constitute 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 plaintiffappellees.

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 
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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 nonperformance, 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.
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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.
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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.
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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.
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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
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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
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Defendants made specific written requests for jury 

instructions, requesting instructions on breach by nonperformance (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 
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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 
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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:
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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 
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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 
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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 crossexamination, 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 
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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, 
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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).