Dan King Plumbing Heating & Air Conditioning, LLC v. Harrison
| Decision Date | 18 January 2022 |
| Docket Number | COA20-698 |
| Citation | 869 S.E.2d 34 |
| Parties | DAN KING PLUMBING HEATING & AIR CONDITIONING, LLC, Plaintiff, v. Avonzo HARRISON, Defendant. |
| Court | North Carolina Court of Appeals |
Hull & Chandler, P.A., by A. Joseph Volta, for Plaintiff-Appellee/Cross-Appellant.
Redding Jones, PLLC, by Joseph R. Pellington, Corey Parton, Charlotte, and Joseph H. Powell, for Defendant-Appellant.
¶ 1 This case presents a number of issues stemming from a contractual dispute between homeowner Avonzo Harrison ("Defendant") and the company that installed his HVAC system, Dan King Plumbing Heating and Air Conditioning ("the Company"). The action began when the Company filed suit against Defendant for money owed on the contract, and in response Defendant filed counter-claims against the Company for breach of contract and unfair and deceptive trade practices ("UDTP"). Following a jury trial, the Company was found liable for breach of contract, but the trial court dismissed Defendant's UDTP claim.
¶ 2 In his appeal, Defendant argues that the trial court erred in (1) ruling that the Company's actions did not constitute UDTP; and (2) not allowing him to amend his counterclaim to add a new debt collections UDTP claim. In its cross-appeal, the Company contends that the trial court erred in (1) denying the Company's motion for directed verdict on the breach of contract claim; (2) refusing to consider the Company's claim for attorneys’ fees; and (3) denying the Company its right to make a final closing argument. We affirm in full the trial court's rulings as to the amendment of the counterclaim and the ordering of closing arguments. Because we hold that the trial court erred, in part, with regard to its evaluation of Defendant's UDTP claims and the Company's motion for directed verdict, we affirm in part, reverse in part, and remand on these issues.
¶ 3 This case arises from a dispute between Defendant and the Company regarding plumbing, heating, and air conditioning services that the Company provided to Defendant in 2017—2018. Defendant is the owner of a home located on Symphony Woods Drive in Charlotte, North Carolina. Defendant decided to have a number of renovations done to the plumbing and HVAC systems in the home, and hired the Company for the task. On 25 October 2017, an employee of the Company, Adam Whal, visited Defendant's home to provide estimates for the work—which included new water heaters, a new HVAC system, a water filtration system, and extensive piping replacement. Defendant was charged $227.37 for the initial site visit and inspection.
¶ 4 On 1 November 2017, Defendant went to the Company's office in-person to meet with Paul Stefano, the general manager, and Ernie Rodriguez, the sales manager. The managers outlined options and prepared written quotes for the plumbing and HVAC work to be performed on Defendant's home. After performing some independent research, Defendant returned to the office the following day and ultimately signed two separate contracts: a $16,324 contract for the plumbing work, and a separate $17,076 contract for the HVAC work. The work and warranties included, among other items not relevant to this appeal:
¶ 5 Following the finalization of the contract on 2 November 2017, the Company began performing plumbing work in the home in early November 2017.1 The Company obtained a permit for the plumbing work, and the plumbing work was completed and ultimately passed its final inspection on 4 December 2017.
¶ 6 During the time that the Company was performing the plumbing work, Defendant was engaged in several other on-site home renovation projects, such as removing the old bathroom vanities and installing new ones, and removing the old kitchen cabinets and installing new ones. Defendant brought in outside workers from Habitat for Humanity to assist in this work.
¶ 7 Sometime during this period, the Company ran into unanticipated difficulties in installing the tankless water heaters that were specified in the contract. Two employees of the Company, Tommy Rea and Adam Whal, spoke with Defendant, and recommended that they install traditional tank-based water heaters instead. Defendant agreed, and the parties then entered into a modified oral agreement for the water heaters.
¶ 8 The modified agreement was memorialized in a written document, dated 7 November 2017, which specified that the filtration system and re-piping work would remain the same, but the tankless water heater would be replaced with two 50-gallon, tank-based water heaters. The modified written agreement was $437 more than the original plumbing contract, and did not mention any warranties.
¶ 9 Defendant, however, denies having ever seen or signed the 7 November written agreement. He asserts that the discussion surrounding the tank-based water heaters was only an oral agreement, and was never presented with a new written contract for the plumbing work. He believes that his signature was forged on the 7 November document.
¶ 10 On the 7 November written agreement, there appears to be a second signature visible underneath Defendant's. The Company asserts that Chad Cockerill, the employee who filled out and signed the 7 November written agreement, accidentally signed the agreement in the wrong place and used white-out to correct the mistake, and that Defendant then signed on top of Chad's whited-out signature. Adam Whal maintains that he witnessed Defendant signing the new contract over the whited-out portion. At trial, the jury agreed with Defendant and found that the Company "superimpose[d] Mr. Harrison's signature onto a document Mr. Harrison did not sign."
¶ 11 Adam Whal returned to Defendant's home on 8 November 2017 to conduct a final inspection and test of the completed plumbing work. The inspection revealed that all plumbing was functional; however, a 40-gallon tank heater had been installed upstairs and a 50-gallon tank heater had been installed downstairs—despite the fact that the amended agreement specified two 50-gallon heaters.
¶ 12 The Company also began work on the HVAC system during the first week of November 2017. The Company obtained a permit for the HVAC work on 3 November 2017, and on this date the Company also completed an "Installation Excellence Checklist" regarding the HVAC work. The Checklist included a list of approximately 50 tasks related to the HVAC work on the home, and indicated that all relevant HVAC tasks had been completed. However, according to the testimony of both Defendant and employees of the Company, the HVAC work had not, in fact, been completed as of 3 November 2017. Defendant asserts that none of the tasks were complete as of that date, while the Company maintains that some of the tasks were completed as of that date. It is unclear from the record when the HVAC work was actually completed, though it was completed at least by February 2018 when it passed inspection.
¶ 13 On 19 November 2017, Defendant emailed Paul Stefano a "punch list" listing several uncompleted plumbing and HVAC tasks, and expressing concern over the completeness of the re-piping work and the professionalism exhibited by the Company. On 30 November 2017, the Company returned to Defendant's residence to conduct a final walkthrough of the plumbing work, prior to inspection. The plumbing work passed County inspection on 4 December 2017. In February of 2018, the HVAC work passed County inspection. The Company visited Defendant's residence several more times between 18 December 2017 and 3 July 2018 to complete various miscellaneous items the parties had contracted for, including the attic insulation.
¶ 14 On several occasions during 2018, Defendant hired or requested quotes from third-party contractors to complete or remediate some of the work performed by the Company, such as replacing one of the water heaters that had begun to leak. He chose to use third-parties, rather than contract any further with the Company or make a claim under the warranty, because their relationship had deteriorated and he did not trust the quality of their work. Defendant also personally registered the manufacturers’ warranties for the equipment purchased through the Company, contrary to his expectations.
¶ 15 When it came time to make payments, under the original two 2 November contracts, Defendant owed the Company $33,400. Under the 7 November amended contract, the amount due was slightly higher, $33,702.97. Defendant paid $30,000 of the amount due on 15 November 2017, via funds obtained from a third-party creditor. The Company calculated Defendant's outstanding balance as the remaining $3,702.92, less a $227 difference crediting the cost of the 25 October visit to Defendant's account, as the parties had agreed to. This amount was not paid by Defendant.
¶ 16 On 18 August 2018, the Company commenced a small claims action against Defendant in Mecklenburg County, requesting money owed for contractual services rendered. The magistrate dismissed the action with prejudice on 17 October 2018, finding that the Company had failed to prove the case by the greater weight of the evidence. The Company timely filed a notice of appeal to the District Court on 25 October 2018.
¶ 17 On 14 November 2018, Defendant filed an answer denying all allegations in the complaint, and also filed a counterclaim against the Company, alleging various...
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