Opinion
No. COA12–647.
2013-01-15
John T. MUSANTE and wife, Mary L. Musante, Plaintiffs, v. BOST CONSTRUCTION COMPANY, a North Carolina Corporation and B & B Contracting, Inc., a North Carolina Corporation, Defendants.
Jordan Price Wall Gray Jones & Carlton, PLLC, by Brian S. Edlin and Joseph Propst, for Plaintiffs-appellees. Anderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence and Stacey E. Tally, for Defendant-appellant.
Appeal by defendant Bost Construction Company from order entered 6 October 2011 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 14 November 2012. Jordan Price Wall Gray Jones & Carlton, PLLC, by Brian S. Edlin and Joseph Propst, for Plaintiffs-appellees. Anderson, Johnson, Lawrence & Butler, L.L.P., by Steven C. Lawrence and Stacey E. Tally, for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Defendant Bost Construction Company (“Bost”) appeals an order sanctioning it for non-compliance with the trial court's previous order. Bost contends the trial court erred by: (1) making no findings of fact in the sanctions order; and (2) requiring it to pay $12,000 of Plaintiff's attorneys' fees. Upon review, we vacate the trial court's order and remand for findings of fact.
I. Facts & Procedural History
On 13 July 2004, John and Mary Musante (the “Musantes”) hired Bost to build a custom home at 117 Trellingwood Drive in Morrisville. Bost subcontracted with B & B Contracting, Inc. (“B & B”) to install a Monier Life Tile roof.
Bost completed work on the home in June 2005. The Musantes moved in and soon experienced leaking from the roof. The Musantes asked Bost to fix the defects, but Bost claimed B & B installed the roof correctly. In Spring 2009, the Musantes experienced further leaking and interior home damage. They hired experts to determine the leak's cause. The experts concluded B & B installed the roof incorrectly according to manufacturer and industry guidelines. With this information, the Musantes again asked Bost to fix the roof. Bost refused and the Musantes continued to experience damage from leaking.
On 10 September 2009, the Musantes filed a complaint against Bost and B & B in Wake County Superior Court. They alleged negligent construction, breach of contract, breach of implied warranties, breach of express warranties, and negligent retention. On 16 November 2009, Bost filed an answer.
In 2010, the Musantes hired two more experts to evaluate their roof. While inspecting the roof, the experts also found problems with the home's external veneer and stucco. On 29 October 2010, the Musantes filed a Second Amended Complaint, alleging negligence for Bost's stucco work in addition to their previous claims.
On 9 August 2010, the trial court issued an Order for Mediated Settlement Conference. Accordingly, the Musantes and Bost held a mediation conference on 26 January 2011. At the conference, Bost suggested the Musantes use Baker Roofing (“Baker”) to repair their roof. The mediator then recessed the mediation so (i) the parties could do further research regarding insurance and (ii) the Musantes could look into using Baker to repair their roof. Between January and March 2011, the Musantes met with Baker representatives and “developed their own comfort level with [the company].”
On 4 March 2011, the Musantes and Bost held a second mediation conference. At this conference, they entered into a Settlement Agreement and Release (the “Agreement”). The Agreement stated “[u]pon execution of this Agreement, Bost will retain the services of Baker ... to perform and correct the [roof repair work]. Bost will pay for all costs associated with the [w]ork. The [w]ork will commence in sufficient time to be completed by June 1, 2011.” The Agreement also stated:
Each of the Parties specifically agrees that, as part of this Agreement, it will bear its own attorneys' fees and costs. Provided, however, that in the event an action is brought to enforce the terms of the Agreement, then in that event, the prevailing Party shall be entitled to recover his or its reasonable attorneys' fees.
Baker was not a party to the Agreement. On 9 March 2011, the mediator told the trial court the case had been settled.
Bost failed to hire Baker per the Agreement due to a disagreement over the contract price. In November 2009, Baker originally provided a price quote of $52,040.00. On 13 January 2011, Baker provided a new quote of $68,044.00 based on revised guidelines from the Musantes' representative. On 9 February 2011, Baker submitted a third quote of $114,628.00 which provided for certain upgrades and increases in labor costs. At the time of the Agreement, Bost had talked with Baker representatives and was under the impression the roof repairs would cost close to the 13 January 2011 figure. However, after the Agreement, Baker indicated it could not perform the job at a cost near that figure.
At the end of April 2011, Bost brought in a representative from Premier Roofing (“Premier”), a Florida roofing company specializing in Monier Life Tile roofs. Bost suggested the Musantes use Premier rather than Baker, but the Musantes rejected this proposal.
On 28 April 2011, the Musantes filed a Motion to Enforce the Settlement Agreement. They alleged Bost “failed to commence the work in time for it to be completed by June 1” and “refuses to contract with Baker [ ] to perform the work under the Agreement.” The trial court heard the Motion on 23 May 2011. On 2 June 2011, it entered an Order Enforcing Settlement Agreement and Mutual Release. The Order “conclude[d] as a matter of law that under [the Agreement], Bost [ ] is required to contract with Baker [ ] for repair and replacement of the Plaintiffs' roof[.]”
Bost still failed to contract with Baker. On 13 July 2011, the Musantes filed a Motion for Order to Appear and Show Cause. The Musantes alleged “Bost willfully has failed to comply and continues to willfully defy the Court's Order[.]” They requested the trial court hold Bost in civil contempt pursuant to N.C. Gen.Stat. §§ 5A–21 and 5A–23 and sanction it with the Musantes' attorneys' fees.
On 15 July 2011, the trial court entered an Order to Appear and Show Cause for Failure to Comply with Court Order. In the order, the trial court stated “there [was] probable cause to believe that Defendant [was] in contempt of an Order of this Court.” The trial court conducted a hearing on 15 August 2011. On 29 August 2011, it entered an order finding “Bost failed to comply with this Court's May 24, 2011 Order.” The order delayed ruling on sanctions until a later date.
On 6 October 2011, the trial court entered a sanctions order stating:
WHEREAS, pursuant to the hearings in this matter and the prior Orders entered herein, the Court finds that [Defendant] failed to comply with the Court's previous Orders and is thereby subject to sanctions;
BASED ON THE FOREGOING, IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that [Defendant] ... has failed to comply with this Court's prior orders;
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that based upon [Defendant]'s non-compliance with this Court's prior Orders, the Court hereby sanctions [Defendant] and assesses to it Plaintiffs' attorneys' fees and costs incurred in this matter associated with the parties' settlement and court proceedings related thereto in the amount of $12,000 to be paid within thirty (30) days of service of this Order.
On 14 October 2011, the trial court determined the case was settled and inactive. On 4 November 2011, Defendant filed timely notice of appeal of the 6 October 2011 Order.
II. Jurisdiction & Standard of Review
This court has jurisdiction to hear the instant appeal pursuant to N.C. Gen.Stat. §§ 5A–24 and 7A–27(e) (2011). See Crane v. Green, 114 N.C.App. 105, 106, 441 S.E.2d 144, 144 (1994) (“A person found in civil contempt may appeal in the manner provided by G.S. § 7A–27.” (citing N.C. Gen.Stat. § 5A–24 (2011))). “The standard of review for contempt proceedings is limited to determining whether there is competent evidence to support the findings of fact and whether the findings support the conclusions of law.” Sharpe v. Nobles, 127 N.C.App. 705, 709, 493 S.E.2d 288, 291 (1997). “Findings of fact made by the judge in contempt proceedings are conclusive on appeal when supported by any competent evidence and are reviewable only for the purpose of passing upon their sufficiency to warrant the judgment.” Hartsell v. Hartsell, 99 N.C.App. 380, 385, 393 S.E.2d 570, 573 (1990).
III. Analysis
Defendant argues the trial court erred by (i) making no findings of fact in its sanctions order; and (ii) requiring Bost to pay $12,000 of the Musantes' attorneys' fees. Upon review, we vacate the trial court's order and remand for findings of fact.
In North Carolina, “[f]ailure to comply with an order of a court is a continuing civil contempt as long as:”
(1) The order remains in force;
(2) The purpose of the order may still be served with compliance with the order; (2a) The noncompliance by the person to whom the order is directed is willful; and
(3) The person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable the person to comply with the order.
N.C. Gen.Stat. § 5A–21(a) (2011).
A trial court's order sanctioning a party for civil contempt must include findings of fact supporting each of these elements. See Mauney v. Mauney, 268 N.C. 254, 256–57, 150 S.E.2d 391, 393 (1966) (“ ‘[T]he facts upon which the contempt is based must be found and filed, especially the facts concerning the purpose and object of the contemnor, and the judgment must be founded on these findings.’ “ (quoting In re Hege, 205 N.C. 625, 630, 172 S.E. 345, 347 (1934))); Clark v. Gragg, 171 N.C.App. 120, 123, 614 S.E.2d 356, 359 (2005) (remanding a civil contempt order for further findings of fact because the trial court “never actually found that plaintiff's non-compliance was ‘willful’ .... [or found] that plaintiff had the means to comply with the orders”). Furthermore, “[w]here an award of attorney's fees is granted, the trial court must make adequate findings as to the reasonableness of the award.” Shippen v. Shippen, 204 N.C.App. 188, 192, 693 S.E.2d 240, 244 (2010) (quotation marks and citation omitted).
When a trial court does not make adequate findings of fact, this Court will vacate the order and remand for findings of fact. See id. at 192, 693 S.E.2d at 244 (2010) (vacating and remanding a civil contempt order granting attorneys' fees as sanctions because the trial court did not make sufficient findings of fact).
In the present case, the 6 October 2011 order fails to include findings of fact. Consequently, we vacate the trial court's order and remand for findings of fact. See Mauney, 268 N.C. at 256–57, 150 S.E.2d at 393;Shippen, 204 N.C.App. at 192, 693 S.E.2d at 244. Because we vacate the entire sanctions order, we decline to address whether the trial court erred by ordering Bost to pay the Musantes' attorneys' fees.
IV. Conclusion
We conclude the trial court erred by failing to make findings of fact in its 6 October 2011 order. Therefore, we vacate the trial court's order and remand for findings of fact.
VACATED and REMANDED. Judges HUNTER, Robert C., and STROUD concur.
Report per Rule 30(e).