Friedman v. Campbell (In re Campbell)

• Decision Date: 05 February 2016
• Docket Number: Case No. 13–81123,Adversary No. 14–09009
• Citation: 545 B.R. 875
• Court: U.S. Bankruptcy Court — Middle District of North Carolina
• Parties: In re: William Oliver Campbell, Debtor. Charles M. Friedman and Luceil L. Friedman, Plaintiffs, v. William Oliver Campbell, Defendant.

545 B.R. 875

In re: William Oliver Campbell, Debtor.Charles M. Friedman and Luceil L. Friedman, Plaintiffs,

v.William Oliver Campbell, Defendant.

Case No. 13–81123

Adversary No. 14–09009

United States Bankruptcy Court, M.D. North Carolina, Durham Division.

Signed February 5, 2016

John M. Sperati, Smith Debnam Narron Drake Saintsing & Myers, LLP, Raleigh, NC, for Plaintiffs.

William Earl Brewer, Jr., The Brewer Law Firm, Raleigh, NC, for Defendant.

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT AND DENYING MOTION TO STRIKE

BENJAMIN A. KAHN, UNITED STATES BANKRUPTCY JUDGE

This adversary proceeding is before the Court on the Motion for Summary Judgment, filed by Plaintiffs Charles M. Friedman and Luceil L. Friedman ("Plaintiffs") on August 31, 2015 [Doc. # 89] ("Motion for Summary Judgment"), Luceil L. Friedman's Affidavit in Support of Motion for Summary Judgment [Doc. # 90] ("Friedman Affidavit"), and Plaintiffs' Memorandum in Support of Motion for Summary Judgment [Doc. # 91] ("Plaintiffs' Memorandum"). The Defendant filed a timely Response to the Motion for Summary Judgment on October 15, 2015 [Doc. # 98] ("Defendant's Response"), the Affidavit of William Campbell in Opposition to the Motion for Summary Judgment [Doc. # 99] ("Campbell Affidavit"), and the Memorandum in Opposition to the Motion for Summary Judgment [Doc. # 100] ("Defendant's Memorandum").

The Defendant filed a first Amended Affidavit of Defendant William Campbell on October 21, 2015 [Doc. # 101] (the "First Amended Campbell Affidavit"), followed by a Second Amended Affidavit of William Campbell on October 28, 2015 [Doc. # 102] (the "Second Amended Campbell Affidavit"). Plaintiffs moved to strike the Campbell Affidavit, the First Amended Campbell Affidavit, and the Second Amended Campbell Affidavit on October 30, 2015 [Doc. # 103] (the "Motion to Strike"). For the reasons set forth herein, the Court will deny the Motion to Strike and deny the Motion for Summary Judgment.

BACKGROUND¹

In 2011, the Plaintiffs began constructing a home on a lot located at 207 High Ridge Lane, Pittsboro, North Carolina (the "Property"). Instead of hiring a licensed general contractor, the Plaintiffs personally managed the construction. The Defendant approached the Plaintiffs about the prospect of becoming the Plaintiffs' flooring contractor. The Plaintiffs attempted to perform due diligence and research on the Defendant and the company through which he presented himself as doing business, Select Forest Products, Inc. ("SFP"). The Defendant presented the Plaintiffs with his business card which included a website for SFP. The version of the website in 2011 was created in 2002. The Plaintiffs submitted as evidence screen shots of SFP's website with the Motion for Summary Judgment, which include a description and showing of Canadian White Hard Maple, an "About Us" section that shows a picture with the caption "We bring in thousands of square feet of hardwood flooring to a climate-controlled warehouse," and a tagline stating "Since 1976" [Doc. # 90, p. 15–17]. The Defendant disputes that the website contained this content in 2011. Instead, the Defendant contends that these screen shots were taken from the website as it existed after the website was remodeled in 2012, and not as it looked when the Plaintiffs were first discussing options and deciding whether to hire the Defendant. The Defendant submitted screen shots of the website as he claims it existed in 2011, during the time which the Plaintiffs might have seen the website. Although the tagline "Since 1976" is similarly present on the earlier version of the website, the "About Us" page looks significantly different and makes no reference to a climate-controlled warehouse. [Doc. # 99, Ex. 1B]. The Plaintiffs also claim that the website only listed one type of maple wood, which was "Canadian White Hard Maple." The Defendant admitted in testimony that Canadian Maple was the only type of maple listed on the website, but he also stated that he never represented he only dealt in Canadian Maple and in fact had numerous types of maple other than Canadian Maple on display in his showroom, which samples the Friedmans had the opportunity to view. [Doc. # 99, ¶ 2, 3].

Luceil Friedman reports that she expressed reservations about installing maple flooring at her home but that the Defendant supported using maple. The Plaintiffs aver that the Defendant specifically stated he dealt only with Canadian Maple for its superior quality and tighter grain. [Doc. # 90, ¶ 7, 8]. The Defendant states he never made the statement that he only worked with Canadian Maple, and he offered evidence of discussions with the Plaintiffs about other types of wood, including other maples, and provided evidence that he displayed other types of maple at the show room. [Doc. # 99, ¶ 3]. The Defendant provided copies of emails between the parties, supporting his contention, and reflecting communications between the parties that contemplated the use and availability of Quartersawn 4" Maple and 5 ¾" engineered maple. [Doc. # 99–1, Ex. 2].

While the Plaintiffs were deciding whether to hire the Defendant and what type of wood to use in their flooring, the Defendant invited the Plaintiffs to view a recent project he had completed (the "Corn House"). The Plaintiffs state the Defendant represented that the wood at the Corn House was Canadian Maple [Doc. # 90, Friedman Affidavit, ¶ 15]. The Defendant states this recent project was specifically shown to the Plaintiffs because it demonstrated the use of Quartersawn Hard Maple and not Canadian Maple [Doc. # 99, Campbell Affidavit, ¶ 7]. Emails sent between parties after the Plaintiffs viewed the Com House show that the Plaintiffs were dissatisfied with what they had been shown as an example. Emails also show the Defendant assured the Plaintiffs that the problem was not the quality or type of wood but that the floor had been improperly installed by installers of whom he did not approve. The Plaintiffs further contend that the Defendant stated that the project climate at the Corn House was not monitored appropriately [Doc. # 99, Ex. 3], and that he would use his own installers on the Plaintiffs' Property, specifically a man named Perferio Garcia ("Mr.Garcia"). The Plaintiffs aver that the Defendant orally assured them that Mr. Garcia was of the "highest caliber." [Doc. # 90, Friedman Affidavit, ¶ 16]. The Defendant further advised that the Plaintiffs might look into engineered wood as an option. Id. The email does not state when the Plaintiffs visited the Com House, but it is obvious from emails sent after January 11 that the Plaintiffs had not decided on a wood type yet. See [Doc. # 99–1, Ex. 2], Therefore, the emails indicate that the Defendant was giving the Plaintiffs other wood options.

In his emails with the Plaintiffs, the Defendant first offers a 3" first grade Canadian Maple by email dated Thursday 29, 2011, [Doc. # 4; Exhibit B] to which the Plaintiffs reply "do you have any 3" samples I can look?" Id. Defendant replied on December 30 that the Plaintiffs were welcome to come see the samples. Defendant then sent an email to the Plaintiffs on January 4, 2012, stating "[t]he mill has 3100 sf of the 4" Select Quartersawn 4" Maple in stock. If interest, let me know. I will send new proposal." To which the Plaintiffs replied "Yes, we are interested. Please send the proposal.... We are planning to also do the two main house bathroom floors as well. [Lu] wants to know what you can take off for not using an underlayment." [Doc. # 99–1]. Regardless of the invoices, the evidence on record creates an issue of fact whether the agreement between the parties was for 4" Quartersawn Maple instead of Canadian Maple. In a follow up email dated January 19, 2015, again the numbers and options listed by the Defendant are all for 4" Quartersawn Maple, 3" Plainsawn Maple, or 5 ¾" engineered Maple, but do not mention Canadian Maple. [Doc. # 99–1]. Finally, an email from Defendant to Plaintiffs on Wednesday January 25, 2012, states the flooring quote is "2768 sf 4" quartersawn Maple @ 5.75 sf tax included." [Doc. # 99–1].

At some point while discussing options, viewing examples of the Defendant's work, and discussing estimates, the Plaintiffs hired the Defendant as flooring contractor. The parties had a verbal contract concerning the work to be performed. Both parties disagree as to what the agreement said about the type of material to be used: the Plaintiffs state they had an agreement for use of Canadian Maple, and the Defendant states the agreement was for Quartersawn Maple. Prior to initiating the work, the Plaintiffs paid Defendant twice: once on February 23, 2012, in the amount of $17,000 and once on March 5, 2012, for $677.80 in payment of an invoice issued January 23, 2012 ("First Invoice") for 2,880 square feet of Floor Maple 4" Quartersawn Canadian Hard White Maple. SFP issued a second invoiced on March 20, 2012, for wood flooring installation, trim, and sales tax (the "Second Invoice"). The Plaintiffs paid this invoice in the amount of $4,218.69 on April 1, 2012. The wood ultimately used at the Property was not 4" Quartersawn Canadian Hard White Maple. The Defendant asserts that he understood the agreement to be for installation of 4" Quartersawn hard maple of Select/1st grade. [Doc. # 99, ¶ 21]. The material ordered was ¾ x 4" 1st Grade Rift & Quarter Hard Solid Maple Flooring. [Doc. # 90].

During installation, the Plaintiffs contacted the Defendant about alleged defects in the hardwood flooring, alleged defects in the installation, and alleged defects in the milling of the flooring. Initially, Defendant and the Plaintiffs communicated about the reported issues, but communication eventually broke down. The Defendant was concerned with the alleged defects, and told the Plaintiffs he would remedy the problems as needed. The Defendant reportedly stated, in a voicemail concerning alleged installation problems, that Mr....