Smiley's Plumbing Co., Inc. v. PEP ONE

• Decision Date: 21 January 2003
• Docket Number: No. COA01-1384.,COA01-1384.
• Citation: 575 S.E.2d 66,155 NC App. 754
• Parties: SMILEY'S PLUMBING CO., INC., Plaintiff, v. PFP ONE, INC. and/or PFP Holdings, Inc., and Royal American Construction of N.C., Inc., Defendants.
• Court: North Carolina Court of Appeals

575 S.E.2d 66

155 NC App. 754

SMILEY'S PLUMBING CO., INC., Plaintiff, v. PFP ONE, INC. and/or PFP Holdings, Inc., and Royal American Construction of N.C., Inc., Defendants.

No. COA01-1384.

Court of Appeals of North Carolina.

January 21, 2003.

Ferguson and Scarbrough, P.A., by James E. Scarbrough; and William C. Isenhour, Concord, for plaintiff-appellant.

Johnston, Allison, & Hord, P.A., by Greg C. Ahlum and Jennifer McKay Patterson, Charlotte, for defendant-appellees.

McCULLOUGH, Judge.

Plaintiff Smiley's Plumbing Co., Inc. (Smiley's), appeals from an order granting summary judgment to defendants PFP One, Inc. and/or PFP Holdings, Inc., and Royal American Construction of N.C., Inc. This appeal was born out of a dispute involving the construction of apartment complexes between the builder, a subcontractor, and a supplier.

The Chapman family is a wealthy Florida family that owns several companies and has built over 100 apartment projects up and down the eastern seaboard. The main Chapman company is People's First Properties, Inc. (PFP). PFP is a Florida corporation and the parent company which owns and controls most of the other Chapman companies. One of these companies is Royal American Construction Corp., another Florida corporation. PFP is the sole shareholder of Royal American of Florida.

Defendant Royal American Construction of North Carolina, Inc., was formed as a North Carolina corporation for the sole purpose of obtaining a North Carolina contractor's license to build two apartment projects in this State. This defendant is owned by Royal American of Florida, but PFP is the sole shareholder.

As for the two apartment projects planned for North Carolina, one was the Oak Crest Apartments in Kannapolis, N.C., which is located in Cabarrus County. The other project was the Stonecreek Apartments in Mooresville, N.C., which is located in Iredell County. Two limited partnerships were created by the Chapmans to own and run the apartment complexes. They were Oak Crest Apartments of Kannapolis, Ltd., and Stonecreek Apartments of Mooresville, Ltd., respectively.

The last player in the Chapman group involved in this litigation is defendant PFP One, Inc. PFP One was a Florida corporation that served as an investment company to own real estate and act as a holding company. PFP is also the sole shareholder of this company. It is to be noted that during the present litigation, PFP One was folded into another corporation named PFP Holdings, Inc.

Plaintiff, Smiley's Plumbing Co., Inc., is a North Carolina plumbing subcontractor out of Kannapolis, N.C. Plaintiff was hired by defendant Royal American of N.C., the general contractor on the two projects, to install plumbing on the two apartment projects.

The last player in this litigation, though not a party to this appeal, is Parnell-Martin Companies, LLC. Parnell-Martin is a plumbing materials supplier out of Mecklenburg County, N.C., which supplied plaintiff with all of its material needs for these two projects.

During 1997, the Oak Crest and Stonecreek projects were proceeding with construction, and plaintiff was installing the plumbing on both projects pursuant to its 19 March 1997 subcontract agreement with defendant Royal American of N.C. According to plaintiff, on 13 November 1997, defendant Royal American of N.C. unilaterally terminated the agreement between the two. Plaintiff made a demand for payment of the services and material provided on both the projects, which was rejected. Thus, plaintiff filed a complaint in Cabarrus County against defendant Royal American of N.C., Oak Crest Apts. of Kannapolis, Ltd., and Stonecreek Apts. of Mooresville, Ltd., on 20 February 1998, (docket number 98-CVS-382), demanding payment on both projects.

While this dispute was ongoing, Parnell-Martin's bill for materials it had supplied to the projects came due. After plaintiff refused to pay for the materials, Parnell-Martin filed a complaint in Iredell County on 20 April 1998 against plaintiff, plus the same parties sued in 98-CVS-382, and a couple of banks in Florida that provided financing (docket number 98-CVS-854), demanding payment for the materials provided on the Stonecreek Project in the amount of $58,222.15, plus interest. The complaint also noted that Parnell-Martin had filed liens against the real property, the owner of the real property (Stonecreek Apartments of Mooresville, Ltd.), the funds due to Smiley's from Royal American of N.C., plus the funds due to Royal American of N.C. from Stonecreek Apts. of Mooresville, Ltd.

Parnell-Martin also filed a complaint against the same parties on 21 April 1998 (docket number 98-CVS-874) in Cabarrus County, demanding payment for the materials provided on the Oakcrest Project in the amount of $42,034.65, plus interest. As in 98-CVS-854, this complaint also noted that Parnell-Martin had filed liens against the real property, the owner of the real property (Oak Crest Apartments of Kannapolis, Ltd.), the funds due to Smiley's from Royal American of N.C., plus the funds due to Royal American of N.C. from Oak Crest Apts. of Kannapolis, Ltd.

The Chapman companies decided to rid themselves of the Parnell-Martin liens. Negotiations between Parnell-Martin, Royal American of N.C., and PFP One, Inc., began. Soon after, these parties signed a "Settlement Agreement" on 29 May 1998.

As Parnell-Martin filed separate suits as to each project, the agreement dealt with each project separately. As to the Oak Crest suit, a settlement was reached between PFP One and Parnell-Martin. PFP One was to pay Parnell-Martin the sum of $42,034.65 (the amount Smiley's owed Parnell-Martin) to purchase all of Parnell-Martin's rights and litigation claims against Smiley's involving the Oak Crest project, namely case number 98-CVS-874. Accordingly, Parnell-Martin was to assign all of such rights to PFP One, and dismiss all claims against any Chapman company and the banks, as well as withdraw all the liens on the project.

As to the Stonecreek suit, a settlement was reached between Royal American of N.C. and Parnell-Martin. Royal American of N.C. was to pay Parnell-Martin the sum of $37,965.35 to satisfy all claims which Parnell-Martin had against any Chapman company in case number 98-CVS-854. Accordingly, Parnell-Martin was to dismiss the Chapman defendants from 98-CVS-854 and remove all liens on the project. Parnell-Martin's claim in 98-CVS-854 against Smiley's was for $58,222.15. The agreement noted that "[t]he remaining claim of Parnell-Martin against Smiley's Plumbing Co., Inc., is reduced by the payment of $37,965.35 made by [Royal American of N.C.]." This left $20,256.80 on Smiley's debt to Parnell-Martin in case number 98-CVS-854.

One last interesting note on the settlement agreement: Joey Chapman, was the Vice President of PFP One and the President of Royal American of N.C. He signed for both companies, and his was the only signature on the agreement from either Chapman entity.

In the suit filed by Smiley's against Royal American of N.C., et. al, 98-CVS-382, the subcontract agreement between the two parties mandated that they submit to arbitration pursuant to N.C. Gen.Stat. § 1-567 (2001) for all claims. The parties were ordered to do so on 16 September 1998 by the trial court. Subsequent to that order, but before the arbitration took place, PFP One was substituted for Parnell-Martin in the Cabarrus County suit, docket number 98-CVS-874, pursuant to the 29 May 1998 agreement, on 14 January 1999. PFP One also made a motion for summary judgment in that case. At the 4 January 1999 hearing, the motion was granted despite arguments by Smiley's that PFP One and Royal American of N.C. were similar entities and summary judgment was not appropriate because of their involvement with Royal American of N.C. in arbitration. Judgment was filed on 14 January 1999 in favor of PFP One for $42,831.52. Smiley's did not appeal.

The arbitrators heard the matter of 98-CVS-382 and made an award on 15 September 1999. The arbitrators made an award to Smiley's: $28,237.00 for the Oak Crest Project; and $11,565.40 for the Stonecreek Project. The net sum that Royal American of N.C. was to pay Smiley's came to $39,802.40. In awarding so, the arbitrators explained that:

Responsibility for controlling and administering the project was weighted against Royal American Construction Company. The project was viewed as a "troubled project" separate from the Smiley's Plumbing problems. Neither party produced manpower, workday history, progress schedules, etc. as support of their claims of lack of performance and/or accelerated effort. The cost of the work completed by Smiley's Plumbing was viewed as a fair and reasonable cost. Both parties were viewed as having contributed to the lack of effective communication. The project was viewed as improperly planned, scheduled and administered by Royal American Construction. Smiley's Plumbing was viewed as a "difficult subcontractor" but, Royal American's process of terminating Smiley's Plumbing was

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