Waters Edge Builders, LLC v Longa
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NO. COA10-1389 NORTH CAROLINA COURT OF APPEALS Filed: 2 August 2011 WATERS EDGE BUILDERS, LLC, Plaintiff, v. Watauga County No. 09 cvd 75 OSCAR LONGA and JENIFER LONGA, Defendants. Appeal by defendants from order entered 11 August 2010 by Judge William A. Leavell, III, in Watauga County District Court. Heard in the Court of Appeals 23 March 2011. Di Santi Watson Capua & Wilson, by Frank C. Wilson, III, for plaintiff-appellee. Miller & Johnson, PLLC, by Nathan A. Miller, for defendantappellants. BRYANT, Judge. Where a claim of lien cannot be premised upon a contract implied in law wherein the theory of recovery is quantum meruit, the trial court erred in granting plaintiff s claim of lien on defendant s property and awarding plaintiff attorney s fees on the basis of plaintiff s status as the prevailing party. the evidence between the is not parties conclusive required that plaintiff the to final Where arrangement perform some act -2indicating a promise to complete defendant s staircase for a cost of $9,000.00, the trial court was not compelled to find that the contractual relationship between the parties was unilateral. Plaintiff Waters Edge Builders, LLC, was hired by defendant Oscar Longa to construct a staircase in a home he and his wife (collectively defendants ) were renovating in Watauga County. This matter arises from a disagreement amount plaintiff was owed for the work. regarding the final On 8 September 2008, plaintiff filed a claim of lien on defendants real property which stated that labor or materials were last furnished upon the property on 13 August 2008. On 5 February 2009, plaintiff filed a complaint seeking recovery on the basis of breach of contract, mechanics and materialman s lien, and quantum meruit. On 1 April 2009, defendant answered plaintiff s complaint and counterclaimed on the basis of breach of contract, fraud, deceptive acts or practices affecting commerce, and action to quiet title. On 25 June 2010, defendants filed a motion to dismiss the claim of lien and for summary judgment as to the contract claim against Jenifer Longa. On 8 July 2010, after considering the affidavits of the parties and the arguments of counsel presented in open court on 6 July 2010, the trial court denied defendants motion motion for summary judgment. to dismiss the claim of lien and On 11 August 2010, the trial court -3entered its order awarding plaintiff $5,000.00 under the theory of quantum meruit and granting plaintiff a materialman s lien against defendants property. Pursuant to the lien, the court ordered that defendants property be sold in accordance with N.C. Gen. Stat. ' 44A-13(b) to satisfy the lien. Further, the trial court concluded that there was an unreasonable refusal by defendants to fully resolve the matter, constituting bad faith. On this basis and in its discretion, the trial court awarded plaintiff $8,625.00 in attorney s fees. On appeal, defendants raise four Defendants appeal. issues: did the trial court err (I) in enforcing plaintiff s claim of lien; (II) in granting plaintiff attorney s fees; (III) in awarding recovery on the theory of quantum meruit; and (IV) in concluding that no unilateral contract existed between the parties. I Defendants first argue that the trial court erred in enforcing plaintiff s claim of lien when the trial court also found that there existed no express contract between the parties and allowed meruit. plaintiff s recovery on the theory of quantum Defendants contend that absent an express contract or one implied-in-fact, plaintiff is precluded from placing a lien on real property. The We agree. materialman s lien statute is remedial in that it seeks to protect the interests of those who supply labor and -4materials that improve the value of the owner s property. O & M Indus. v. Smith Eng g Co., 360 N.C. 263, 268, 624 S.E.2d 345, 348 (2006) (citations omitted). A remedial statute must be construed of broadly eliminated, the in the remedies objective to be attained. light intended the to evils be sought applied, to and be the Carolina Bldg. Servs. Windows & Doors, Inc. v. Boardwalk, LLC, 362 N.C. 262, 264, 658 S.E.2d 924, 926 (2008) (citation and internal quotations omitted). Under North Carolina General Statutes, section 44A-8, [a]ny person who performs or furnishes labor or professional design . . . or furnishes materials . . . pursuant to a contract, either express or implied, with the owner of real property for the making of an improvement thereon shall, upon complying with the provisions of this Article, have a right to file a claim of lien on real property on the real property to secure payment of all debts owing for labor done or professional design or surveying services or material furnished or equipment rented pursuant to the contract. N.C. Gen. Stat. ' 44A-8 (2009) (emphasis added). least three variations of contract theory . There are at . . : express contract, contract implied in fact, and contract implied in law. The first two theories are based on real contracts, genuine agreements between the parties. Ellis Jones, Inc. v. Western Waterproofing Co., 66 N.C. App. 641, 645, 312 S.E.2d 215, 217 (1984). A contract implied-in-law is not based upon an actual agreement. Paul L. Whitfield, P.A. v. Gilchrist, 348 N.C. 39, -542, 497 S.E.2d 412, 415 (1998). [A]nd quantum meruit is not an appropriate remedy when there is an actual agreement between the parties. Id. In order to prevent unjust enrichment, a plaintiff may recover in quantum meruit on an implied contract theory for the reasonable value of services rendered to and accepted by a defendant. Horack v. S. Real Estate Co., 150 N.C. App. 305, 311, 563 S.E.2d 47, 52 (2002) (citation omitted). Here, the trial court denied plaintiff s claim for breach of contract. Specifically, the trial court found that Plaintiff failed to submit evidence sufficient to prove that there was a meeting of the minds as to the amount and manner in which Plaintiff was to be paid for work performed for Defendants and therefore Plaintiff failed to prove express contract between the parties. that there was an Instead, the trial court found that there were sufficient grounds to award plaintiff a recovery for the value of materials and labor under the theory of quantum meruit. [While] quantum meruit is a measure of recovery for the reasonable value of services rendered in order to prevent unjust enrichment. It operates as an equitable remedy based upon a quasi contract or a contract implied in law. A quasi contract or a contract implied in law is not a contract. Gilchrist, 348 N.C. at 42, 497 citations and quotations omitted). S.E.2d at 414-15 (internal A contract implied-in-law is nothing more than a term of art used to express an equitable -6remedy used establish by a the valid court to prevent claim of lien unjust under enrichment. section enforceable contract must exist between the parties. 44A-8, To an As quantum meruit is not a theory based upon an actual agreement, it may not establish the contractual relationship necessary to form the basis for filing a claim of lien pursuant to N.C.G.S. ' 44A-8. Accordingly, the trial court s order granting plaintiff a lien on defendants real property is reversed. II Next, defendants argues that the trial court erred in granting plaintiff attorney s fees pursuant to N.C. Gen. Stat. ' 44A-35. For the reasons stated herein, we vacate the award. [T]he general rule in North Carolina is that a party may not recover its attorney s fees unless authorized by statute. Martin Achitectural Prods. Inc. v. Meridian Constr. Co., 155 N.C. App. 176, omitted). overturn 181, 574 S.E.2d 189, 192 (2002) (citations The case law in North Carolina is clear that to the attorneys discretion. trial fees, judge s the determination defendant must on show the issue of an abuse of Bruning & Federle Mfg. Co. v. Mills, 185 N.C. App. 153, 155, 647 S.E.2d 672, 674 (2007) (citation and brackets omitted). In any suit brought or defended under the provisions of Article 2 or Article 3 of [Chapter 44A, Statutory Liens and -7Charges], the presiding judge may allow a reasonable attorneys fee to the attorney representing the prevailing party. N.C. Gen. Stat. ' 44A-35 (2009). In its order, the trial court awarded plaintiff attorney fees pursuant to N.C.G.S. ' 44A-35, as the prevailing party. However, given our holding in issue I, prevail within the meaning of ' 44A-35. plaintiff could not Accordingly, the trial court s award of attorney fees to plaintiff, as the prevailing party, pursuant to N.C.G.S. ' 44A-35, is vacated. III Next, defendants argue that the trial court erred in awarding plaintiff a recovery in the amount of $5,000.00 on the theory of quantum meruit as the trial court lacked competent evidence to arrive as such a figure. We disagree. In a non-jury trial, the trial court s findings of fact are conclusive on appeal if supported by competent evidence. Olivetti Corp. v. Ames Business Sys., Inc., 319 N.C. 534, 541, 356 S.E.2d 578, 582 (1987) (citation omitted). Therefore, our task is limited to determining whether there was competent evidence from which the trial court could find that the amount plaintiff was entitled to recover under the theory of quantum meruit is $5,000.00. See id. Under a contract implied in law, the measure of recovery is quantum meruit, the reasonable value of materials and -8services rendered by the appropriated by defendant. plaintiff that are accepted and Ellis Jones, 66 N.C. App. at 647, 312 S.E.2d at 218 (citations omitted). Randy Waters, member-manager for plaintiff, testified that he was the contractor constructing defendant s stairwell. was first testified referred that to defendants defendant Oscar on Longa 30 April 2008. selected solid He Waters oak and wrought iron spindles as the materials out of which to construct the staircase. In late June 2008, Oscar Longa requested that Waters provide him with an estimate. Waters estimated that the construction would cost $8,936.00. On 28 July 2008, near the completion of the project, Waters sent to Oscar Longa an invoice for $13,830.14. Oscar had already paid Waters $4,788.00 and, on 8 August 2008, paid an additional $3,000.00. residence. be made the On 8 August, Waters met defendants at the Waters testified that Oscar requested some changes on the staircase landings for which Waters did additional work amounting to $1,304.85 between 8 and 14 August. Given the total invoice and subtracting the amounts previously paid ($4,788.00 and $3,000.00), defendants amount outstanding was $7,346.99. In a telephone conversation occurring after 15 August 2008, Waters testified that Oscar Longa informed him that they had an agreed upon price of $9,000.00 and that defendants -9would not pay the outstanding balance. Waters subsequently received a check from Oscar Longa for $1,500.00. At trial, on cross-examination, Waters acknowledged that some portions of the handrail system and corresponding treads would need to be replaced; however, in lieu of replacing the entire handrail system, some of the treads would, as a result, be disproportionately spaced. Q. If it was determined, or if you had to do this, to replace the entire handrail system, uninstall it, fix the treads that are cut and reinstall the handrail system so you don't cut treads, how much would that cost in materials and man time? A. I have no idea. Q. Do you have an estimate? A. No. Q. $2,000? A. (no audible response) Q. More? A. (no audible response) MR. WILSON: Your Honor, he doesn t have an estimate. said he THE COURT: Well, we re looking for a ballpark. Give us a ballpark, if you can. A. Well, you could certainly reuse all the spindles. You could reuse all the newel posts. You could reuse all the handrails. So you're really talking about treads. I think an oak tread s about $25. -10Q. Do you know how many were cut? A. A gallon of stain s, you know, $30. What, three? Three of them? Two? Three? Q. Okay. What kind talking about? A. I mean, I could do it by myself in a day. of man hours are we In its order, the trial court made the following findings: 8. Plaintiff submitted evidence that the present balance due from Defendants for work performed on the Defendants residence was $7,346.99. 9. Defendants submitted evidence that questioned whether some of the workmanship performed by the Plaintiff was in accordance with acceptable construction standards and practices. 10. The Court finds after considering all of the evidence including the testimony of the witnesses, the photographs and invoices introduced by Plaintiff that the balance of the value of material and labor furnished by the Plaintiff to the Defendants is $5,000.00. Given the evidence and the inexact nature of ascertaining a definite cost for the type of service provided, the value as assessed by the trial court, for the materials and services rendered by plaintiff and accepted by defendants, was reasonable and supported by competent evidence. See Ellis Jones, 66 N.C. -11App. at 647, 312 S.E.2d at 218. Accordingly, defendants argument is overruled. IV Last, failing defendants to find argue that a plaintiff and defendants. that the unilateral trial contract court erred existed by between We disagree. A unilateral contract is formed when one party makes a promise and expressly or impliedly invites the other party to perform some act as a condition for making the promise binding on the promisor. CIM Ins. Corp. v. Cascade Auto Glass, Inc., 190 N.C. App. 808, 811, 660 S.E.2d 907, 910 (2008) (citation omitted). On 28 June 2008, defendant Oscar Longa sent plaintiff an email stating the following: In regards to the cost of the finished product, labor, materials, installed and finished. . . . I need a total not to exceed price, would a total price of $9,000.00 work for you? If it does, let s get started. However, Waters testified that following defendant s email, he had a telephone conversation with defendant Oscar Following is an excerpt of his testimony: Q. And what was conversation? discussed in that A. Well, I think the previous e-mail where we were still discussing a design direction, and we discussed the $9,000 as a capped bid. And I -- again, I Longa. -12don t work on capped bids. Everything I do is time and material. And the project and the design installation was going to strictly have to be engineered on the fly, and there s no way that I could ever have known what I was going to get into during the installation, not to mention we still didn t have a final selection of material picked out. Q. A. Yes. Q. Had any of that been finalized yet? A. No. Q. After that discussion with Mr. Longa, did you then begin work? A. As And in the e-mail that Mr. Longa sent to you requesting a cap of $9,000, was he still discussing the selection of materials? Well, after he gave me assurances that he wanted me to install the system, he would pay me, he wanted to get his CO and wanted me to order the material, which I did. the evidence arrangement between is the not conclusive parties invited that plaintiff the to final perform some act as a condition for making the promise to complete the construction of defendants staircase for $9,000.00, the trial court was not compelled to find that the contractual relationship between plaintiff and defendants was a unilateral one. See id. at 811, 660 S.E.2d defendants argument is overruled. at 910. Accordingly, -13We reverse the trial court s order granting plaintiff a claim of lien, and vacate the award of attorneys fees based thereon. plaintiff We affirm based on the trial quantum court s meruit and $5,000.00 its award ruling of unilateral contract. Affirmed in part; reversed in part; and vacated in part. Judges ELMORE and GEER concur. to no
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