Moon v. Central Builders, Inc., 65 N.C. App. 793

65 N.C. App. 793 | N.C. Ct. App. | 1984

PHILLIPS, Judge.

Though the defendant’s eleven assignments of error run the gamut from the court refusing to continue the trial to the entry of judgment, none have merit and only four of them require discussion.

Continuances are not favored by the law; they may be granted only for good cause shown and motions therefor are addressed to the sound discretion of the trial judge. Rule 40(b), N.C. Rules of Civil Procedure; Shankle v. Shankle, 289 N.C. 473, 223 S.E. 2d 380 (1976). That defendant Williams, a key witness for the corporate defendant, was too ill to attend the trial is apparent from the record; and ordinarily that might have required the court to continue the case as requested. But the case, then more than three years old, had been continued several times before because of Williams’ ill health, and about six months earlier the court had advised defendants’ counsel by letter that the case would not be continued again and suggested that defendant Williams’ deposition be taken as a precautionary measure. This was done and excerpts from the deposition were read into evidence at the trial. Under these circumstances we cannot say that the court’s refusal to again continue the case exceeded the bounds of judicial discretion.

Nor was plaintiffs claim barred by the Statute of Frauds, as defendant contends, because the agreement permitting defendants to use plaintiffs land was not reduced to writing. The Statute of Frauds, G.S. 22-2, applies only to contracts to sell or convey an interest in land. Plaintiffs claim is not that she had sold an interest in her land to defendants, but that she had given them a license to use her road. A license to use land is not an interest in land. Sanders v. Wilkerson, 285 N.C. 215, 204 S.E. 2d 17 (1974). Thus, the Statute of Frauds has no application. Furthermore, no damages were awarded for breach of the alleged licensing agreement. Plaintiffs damages were awarded in quantum meruit, trespass, and for unlawfully cutting timber under G.S. 1-539.1. A quantum meruit claim, which is implied by law rather than agreed to by the parties, is not within the Statute of Frauds, Hicks v. Hicks, 13 N.C. App. 347, 185 S.E. 2d 430 (1971); nor, for that matter, are trespass or unlawful timber cutting claims.

Nor was it error for the court to receive plaintiffs opinion as to the fair market value of her property, even though no attempt was made to qualify her as an expert in the field of real estate values. It has long been the law in this state that property owners may testify as to the fair market value of their property without being qualified as expert witnesses. North Carolina State Highway Commission v. Helderman, 285 N.C. 645, 207 S.E. 2d 720 (1974).

Finally, the evidence presented does support the court’s findings, which in turn support the conclusions of law and judgment.

Affirmed.

Chief Judge VAUGHN and Judge WHICHARD concur.