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Rider v. Hodges

Court of Appeals of North Carolina

August 15, 2017


          Heard in the Court of Appeals 7 June 2017.

         Appeal by plaintiffs from an order granting summary judgment in favor of defendant entered 17 November 2016 by Judge Mark E. Powell in Henderson County No. 15 CVS 1821 Superior Court.

          James W. Lee III, for the plaintiffs-appellants.

          Northup McConnell & Sizemore, PLLC, by Robert E. Allen, for defendant-appellee.

          MURPHY, JUDGE.

         Thomas Rider ("Thomas") and Linda Rider ("Linda") (collectively "the Riders") appeal from the trial court's decision granting Edwin Hodges d/b/a Hodges Lawn and Landscape's ("Hodges") motion for summary judgment as to the Riders' causes of action for: (1) breach of contract; (2) fraudulent billing; and (3) violation of the Unfair and Deceptive Trade Practices Act ("UDTPA"). The Riders argue that the trial court erred in granting the motion for summary judgment because genuine issues of material fact exist as to whether: (1) Hodges breached a valid contract; (2) Hodges committed fraudulent billing; and (3) Hodges engaged in unfair and deceptive trade practices. After careful review, we affirm the trial court's grant of Hodges' motion for summary judgment.


         In early July 2011, the Riders moved to the Oleta Falls area of Hendersonville, North Carolina. At some point prior to their move, [1] the parties arranged for Hodges to landscape the Riders' property.[2] The Riders paid Hodges $24, 000 upfront "[t]o do landscaping, " in two separate payments - $4, 000 on 3 February 2011, and $20, 000 on 4 March 2011. In June of 2012, Hodges felt that his landscaping services were completed and he ceased working on the Riders' property. Thomas claims that there were numerous issues with the landscaping. However, the Riders never complained about Hodges' work until 2015 when they filed this lawsuit.

         Thomas contends that the Riders consistently asked Hodges for receipts or other documentation of his work expenditures throughout the landscaping process. However, the only documented request for Hodges' receipts occurred by email on 13 October 2013. Two or three days after this request, Hodges provided the Riders with an invoice ("the Invoice"). This was at least two years after the Riders claim the parties first entered into an arrangement. Both parties agree that the Invoice was created for use in the Riders' lawsuit against First Citizens Bank.

         Despite Thomas' contention, Hodges claimed that the Riders first asked him to provide receipts for his work in 2013, and in total the Riders only asked for receipts "two, maybe three [times] including the [13 October 2013] email." Hodges further claimed that he offered receipts each time the Riders wrote him a check, and again when he completed all of his work in 2012, but the Riders declined.

         After the Riders filed this suit, both Thomas and Hodges were deposed on 23 June 2016 regarding their business dealings and the landscaping arrangement. In Thomas' deposition, he testified that Hodges agreed the cost of the landscaping "would be up to [$24, 000.]" In the same deposition, Thomas agreed that "there was never any firm agreement with regard to price." However, in his 27 October 2016 affidavit, filed in opposition to Hodges' motion for summary judgment, Thomas claims that Hodges "agreed to perform the specified landscaping work for [$24, 000]."

         In contrast to Thomas' testimony, Hodges claimed in his deposition that he told the Riders it would cost between $26, 000 and $28, 000 to landscape their property. Hodges went on to explain that the Riders paid him $24, 000 because that was what they could afford for landscaping, and that "[i]t was understood that we would landscape everything we could with all the plants we could until [the Riders] ran out of money."

         In addition to Thomas' inconsistent sworn testimony regarding price, the depositions also demonstrate that the parties never reached an agreement as to the scope of the work Hodges was to complete. In his deposition, Thomas claimed that he and Hodges spoke about the landscaping including: a flagpole, irrigation, re-grading part of a hill on the property, fencing, and plants. Thomas went on to admit that there was no "specific agreement, " as to plans for irrigation, how much fencing would be built, how many or what type of plants would be provided, or how much mulch and top soil would be used. Thomas also admitted, "there was never a meeting of the minds, " and that he and Hodges had "no specific agreement about anything."

         The trial court entered an order granting summary judgment in Hodges' favor. The Riders filed a timely notice of appeal.


         The Riders argue on appeal that the trial court erred in granting Hodges' motion for summary judgment. We disagree and affirm the trial court's decision.

         We review an order granting summary judgment de novo. Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382, 385 (2007) (citation omitted). Summary judgment is only appropriate when the record shows "there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." Id. at 524, 649 S.E.2d at 385 (quotation omitted).

         I. Breach of Contract

         The Riders argue the trial court erred in granting summary judgment on their claim for breach of contract because Hodges did not perform all of the landscaping work for which the parties contracted. We disagree. No contract ever formed because the arrangement was not certain and definite as to the price or scope of the work to be completed, and no meeting of the minds occurred.

         "A contract for service must be certain and definite as to the nature and extent of the service to be performed, the place where and the person to whom it is to be rendered, and the compensation to be paid, or it will not be enforced." Croom v. Goldsboro Lumber Co., 182 N.C. 217, 220, 108 S.E.2d 735, 737 (1921) (emphasis added). With regard to these essential terms "the parties must assent to the same thing in the same sense . . . . If any portion of the proposed terms is not settled, or no mode agreed on by which they may be settled, there is no agreement." Boyce v. McMahan, 285 N.C. 730, 734, 208 S.E.2d 692, 695 (1974) (internal quotation omitted). Similarly, "a valid contract exists only where there has been a meeting of the [parties'] minds as to all essential terms of the agreement." Northington v. Michelotti, 121 N.C.App. 180, 184, 464 S.E.2d 711, 714 (1995) (citation omitted).

         The Riders' breach of contract argument fails for two reasons. First, while both parties acknowledge a landscaping arrangement existed, there was never a meeting of the minds as to the scope of the work to be done. See Croom, 182 N.C. at 220, 108 S.E.2d at 737 (explaining that the extent of the services to be performed is an essential element of an enforceable contract for services). Here, Thomas' own testimony demonstrates the parties never specified the breadth of the work Hodges was to complete.

         In his deposition, Thomas claims that after the Riders retained Hodges and paid him in full, Hodges "didn't agree to specifically do anything, just to get started on the landscape." Although certain topics such as irrigation were discussed, Thomas affirms that there was never a definitive meeting of the minds as to "any specific terms of the contract with regard to what work or materials [would] be performed [by Hodges.]" As a result, no meeting of the minds occurred ...

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