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 defenses
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 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.
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 Alicia 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.
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.
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).
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.
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 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
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 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:
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
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.
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.
Hinnant v. Philips, 184 N.C. App. 241, 245, 645 S.E.2d 867, 870 (2007) (citation and quotation marks omitted).
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,
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 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
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 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.
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.