in the Court of Appeals 7 June 2017.
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.
W. Lee III, for the plaintiffs-appellants.
Northup McConnell & Sizemore, PLLC, by Robert E. Allen,
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.
early July 2011, the Riders moved to the Oleta Falls area of
Hendersonville, North Carolina. At some point prior to their
move,  the parties arranged for Hodges to
landscape the Riders' property. 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
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.
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.
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
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
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
trial court entered an order granting summary judgment in
Hodges' favor. The Riders filed a timely notice of
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.
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
Breach of Contract
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.
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).
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.
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 ...