People's Center, Inc. v. Anderson , 32 N.C. App. 746 ( 1977 )

233 S.E.2d 694 (1977) 32 N.C. App. 746

PEOPLE'S CENTER, INC.
v.
Robert N. ANDERSON, Jr., et al.

No. 7610SC818.

Court of Appeals of North Carolina.

April 6, 1977.

Broughton, Broughton, McConnell & Boxley, Raleigh, and Haywood, Denny & Miller, Durham, by John D. McConnell, Jr., Raleigh, for plaintiff-appellant.

Cooper, Dodd & Pipkin by Gene Dodd, Research Triangle Park, and Young, Moore, Henderson & Alvis by J. C. Moore and Charles H. Young, Jr., Raleigh, for defendants-appellees.

HEDRICK, Judge.

Plaintiff first contends it is entitled to a new trial because the court inappropriately made "findings of fact" in its judgment directing a verdict for the defendants. While the order allowing defendants' motion for a directed verdict does recite, "[T]here is evidence tending to show that defendants were negligent in making the certifications which have been identified as plaintiff's exhibits numbers 5, 14, 15, 16, 17 and 18, but that there is no evidence tending to show that such negligence proximately resulted in damage to plaintiff, as alleged in the pleadings," such a recital is not findings of fact. Judge Godwin was merely stating his reason for allowing the motion. This contention has no merit.

Assuming arguendo that the record does contain evidence tending to show that defendants were negligent in making the progress reports complained of, the question remains as to whether the record contains any evidence that such negligence was a proximate cause of any damage allegedly sustained by plaintiff.

"It is an elementary principle that all damages must flow directly and naturally from the wrong, and that they must be certain both in their nature and in respect to the cause from which they proceed." Johnson v. Railroad, 184 N.C. 101, 105, 113 S.E. 606, 608 (1922) (emphasis added).

"The principle which will not allow the recovery of damages when their existence rests solely on speculation applies both to the fact of damages and to their cause. Thus, a plaintiff cannot recover damages by proving only that the defendant has unlawfully violated some duty owing to the plaintiff, leaving the trier of fact to speculate as to the damages; he must go further and prove the nature and extent of the damage suffered by the plaintiff and that the breach of duty was the legal cause of that damage. Leaving either of these damage questions to speculation on the part of the trier of fact will prevent recovery. Therefore, no recovery can be had in those cases in which it is uncertain whether the plaintiff suffered any damage. Also, no recovery is allowed when resort to speculation or conjecture is necessary to determine whether the damage resulted from the unlawful act of which complaint is made or from some other source." 22 Am.Jur.2d, Damages § 24 (1965).

With respect to damages plaintiff, in its complaint, alleged:

"10. The contract between plaintiff and Hutchins Construction Co., Inc. required completion of the project by September 15, 1970, and not only was the same not completed by then, but within a week of the defendants' progress report dated October 8, 1970, Hutchins Construction Co., Inc. gave notice that it defaulted on its contract. In fact, plaintiff later determined that the project was no more than 50% complete at the time of the defendants' progress report of October 8, 1970, therefore making all of the defendants' said progress reports extremely incorrect and obviously negligently made; and the plaintiff, in order to complete the contracted for shopping center, which was to have cost $850,000, had to expend an additional $758,492.64 to complete the project, and in addition to the aforesaid expenditure, the plaintiff suffered a loss of $80,000 in rentals because of the extra six months it took to complete the project after the default of Hutchins Construction Co., Inc.

"11. That as a result of the careless and negligent actions of the defendants in their professional representations, made to and relied upon by the plaintiff as herein set out, the plaintiff has been injured and damaged, and suffered losses in the amount of $838,492.64."

With respect to damages the only inference reasonably deducible from the evidence is that in addition to the $857,221.57 paid to Hutchins, plaintiff expended either $807,000 or $624,224.36 in completing the shopping center after Hutchins abandoned the project and it lost certain rentals and forfeited certain fees due to the delay in opening the shopping center. There is no evidence in this record that plaintiff could have taken any action to decrease the total cost of the project or to move forward the ultimate opening date of the shopping center had it been fully and accurately informed of the status of the project by defendants' progress reports. The jury could have only speculated as to whether defendants' alleged negligence was the source of any damage. Indeed, as to the source of the damage, the only inference reasonably deducible from the evidence is that any damage suffered by plaintiff was caused solely by Hutchins' default.

The judgment appealed from is

Affirmed.

BRITT and CLARK, JJ., concur.