Opinion
9:23-cv-00460-RMG-MGB
08-24-2023
Kiril Zahariev, Plaintiff, v. B&C Savannah Wildlife Enterprises Inc. d/b/a Critter Control of Hilton Head, Defendant.
REPORT AND RECOMMENDATION
MARY GORDON BAKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff, pro se, filed this civil action on February 2, 2023, alleging violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”), breach of contract, breach of contract with fraudulent intent, negligent misrepresentation, and fraud. (Dkt. No. 1.) Currently before the Court is Defendant's Motion to Dismiss, or, in the alternative, Motion for Summary Judgment. (Dkt. No. 13.) Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1) and Local Rule 73.02(B)(2)(e), D.S.C., all pretrial matters in cases involving pro se litigants are referred to a United States Magistrate Judge for consideration. For the reasons set forth below, the undersigned RECOMMENDS that Defendant's Motion (Dkt. No. 13) be GRANTED.
BACKGROUND
This case arises out of work Defendant performed on Plaintiff's roof. (Dkt. No. 1 at 3.) Plaintiff hired Defendant, a Critter Control Company, to tend to “noises from [his] attic, possibly caused by an animal.” (Id. at 2-3.) According to the Complaint, “a Critter Control employee came to [Plaintiff's] residence to inspect and provide an opinion” on March 23, 2022. (Id. at 3.) The employee advised Plaintiff that he had “a rat problem” and suggested that he purchase the “Exclusion Pro Bundle” for $2,300. (Id.) Plaintiff agreed and entered into a contract with Defendant on March 23, 2022. (Id.) The “Exclusion Pro Bundle” included modifications to the structure of Plaintiff's roof, including, inter alia, “custom metal flashings at the soffit junctions, Ridge Guard over the existing cap vents, [and] ExclusionPro roof vent guards installed over the plumbing exhaust vent pipes on the roof.”
Plaintiff alleges that Defendant's employees returned to his house the next day to start the agreed upon work. (Id.) Plaintiff claims that he objected because it was a rainy day, but Defendant's employees told him “they do it all the time.” (Id.) Plaintiff claims that Defendant's work “deviated from generally accepted industry standards” and was faulty. (Id.) Plaintiff further claims that “[e]ach and every installation and modification to the roof structure was done in noncompliance with GAF installation instructions and the grossly negligent work of Critter Control voided the Silver Pledge Warranty.” (Id.) Finally, Plaintiff claims that Defendant cut off roof vent pipes without his knowledge, in violation of South Carolina's building and plumbing codes. (Id. at 4.)
When Defendant requested payment for the work on March 24, 2022, Plaintiff “shared his concerns and dissatisfaction with Nick Barber, general manager and co-owner of Critter Control.” (Id.) A few days later, on March 28, 2022, Barber visited Plaintiff's home to discuss the issues and review Defendant's work. (Id.) Plaintiff claims that Barber told him “the flashings, ridge guard and vent pipe guards [were] installed properly and the only issue he [saw was] the cutting off of the roof vent pipes.” (Id.) Plaintiff further claims that Barber offered him a “10 year ‘verbal warranty' on the project.” (Id.)
According to Plaintiff, he subsequently “obtained three independent reports of the work performed by Critter Control and B&C Savannah Wildlife Enterprises Inc.” (Id.) Plaintiff claims that “[a]ll three reports agree that the work of Critter Control and B&C Savannah Wildlife Enterprises Inc. was done improperly, not in compliance with GAF installation instructions, with too many exposed screws through shingles and that those issues are not covered under current roof warranty” and that “the reports warned of [imminent] leaks in the future.” (Id.) Plaintiff claims that he was advised to have the roof repaired immediately in order to prevent leaks, but that he could not find a company to repair the defective work until May 2, 2022. (Id. at 5.)
Plaintiff alleges that Defendant's “grossly negligent and defective work” caused him “financial hardship, mental anguish and emotional distress.” (Id.) His Complaint brings causes of action for: violation of the SCUTPA, breach of contract, breach of contract with fraudulent intent, negligent misrepresentation, and fraud. (Id. at 5-10.) He requests, inter alia, actual, compensatory, and punitive damages. (Id. at 10.)
On March 15, 2023, Defendant filed a Motion to Dismiss or, in the alternative, Motion for Summary Judgment. (Dkt. No. 13.)The next day, this Court issued an Order pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advising Plaintiff of the dismissal procedure and the possible consequences if he failed to adequately respond to the Motion. (Dkt. No. 13.)
Defendant simultaneously filed a Motion to Seal seeking leave to file a “Settlement, Mutual Release, and Indemnity Agreement” previously entered into by the parties. (Id.) However, the Motion to Seal was rendered moot when Plaintiff filed the agreement as a public exhibit to his response in opposition to Defendant's Motion to Dismiss. (Dkt. No. 25-7.)
In its Motion, Defendant explains that “this is not the first case that the Plaintiff has filed against the Defendant arising out of the Service Agreement and the work performed by Defendant thereunder. On April 20, 2022, Plaintiff filed a lawsuit in the Chatham County (Georgia) Magistrate's Court ....” (Dkt. No. 13-1 at 1.) Defendant continues on to explain that Plaintiff dismissed that case without prejudice on November 30, 2022 and that, “[w]hile the Georgia Case was pending, the parties engaged in extensive settlement negotiations that culminated in the execution of a Settlement, Mutual Release, and Indemnity Agreement.” (Id. at 2.) According to Defendant, the Plaintiff “released and forever discharged several parties-including the Defendant and its insurance carrier-of and from all claims arising out of or in any way related to alleged negligent acts or omissions in connection with the work performed on Plaintiff's home by Defendant.” (Id.) Defendant therefore contends that “[b]ecause the Plaintiff has released and forever discharged the claims asserted in the Complaint, the Complaint should be dismissed, or summary judgment should be granted to the Defendant.” (Id.)
On March 28, 2023, Plaintiff filed a response in opposition to Defendant's Motion. (Dkt. No. 25.) In his response, Plaintiff argues that the Settlement, Mutual Release, and Indemnity Agreement (the “Settlement Agreement”) does not preclude his claims because it is not enforceable. (Id. at 1.) More specifically, Plaintiff asserts that the Settlement Agreement is unenforceable because: (1) the Superior Court Judge presiding over his case was a Facebook friend of opposing counsel; (2) opposing counsel “engaged in overreaching and fraudulent inducement with incessant threats for motions for attorney fees and sanctions”; (3) “the Release is unenforceable and against public policy”; (4) the signatures to the Settlement Agreement are “fraudulent and unauthenticated”; (5) Plaintiff is not in possession of settlement funds; and (6) the Chatham County Magistrate's Court told Plaintiff “to take his claims back across the river.” (Id. at 1-2.) Defendant replied to Plaintiff's response on April 4, 2023, reiterating its position that the Settlement Agreement precludes Plaintiff's causes of action in this case. (Dkt. No. 27.) The Motion before the Court has been fully briefed and is ripe for disposition. The undersigned considers the parties' arguments, below.
LEGAL STANDARD
Defendant argues that Plaintiff's Complaint should be dismissed for failure to state a claim on which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Dkt. No. 13 at 1.) In the alternative, Defendant argues that there is no genuine issue as to any material fact that will entitle Plaintiff to recover from Defendant. (Id.)
When considering a motion to dismiss under Rule 12(b)(6), the Court should “accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff.” Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the Court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, the Court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). Where, as here, matters outside the pleadings are presented to and not excluded by the Court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment “shall” be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In ruling on a motion for summary judgment, “‘the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.' ” Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)); see also Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
Because Plaintiff brought this action pro se, these standards must be applied while liberally construing his filings in this case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Estelle v. Gamble, 429 U.S. 97, 106 (1976).
DISCUSSION
As noted, Defendant contends that Plaintiff's claims in this civil action are precluded by the Settlement Agreement. (Dkt. Nos. 13, 13-1.) In response, Plaintiff claims that the Settlement Agreement does not bar his claims because it is unenforceable. (Dkt. No. 25.) The Settlement Agreement was entered into in September of 2022 and is signed by both Plaintiff and Defendant. (Dkt. No. 25-7.) The relevant portions of the Settlement Agreement state:
WHEREAS, On or about April 20, 2022, Mr. Zahariev filed a Complaint in the Chatham County (Georgia) Magistrate's Court captioned Kiril Zahariev vs. Nick Barber, Critter Control of Savannah/Hilton Head, B&C Savannah Wildlife Enterprises, Inc., Civil Action No. MGCV22-04948 (the “Lawsuit”); and
WHEREAS, In the Lawsuit, Mr. Zahariev asserted claims arising out of certain alleged negligent acts or omissions in connection with work done on the Zahariev home (the “Residence”) at 15 Norris Avenue, Bluffton, SC 29910 (the “Occurrence”); and
WHEREAS, The Plaintiffs have sought to recover monetary damages as a result of the Occurrence, alleged damage to the Residence as a result of the Occurrence, asserted causes of action for breach of contract, fraud, professional negligence, breach of implied warranty, violation of the South Carolina Unfair Trade Practices Act (“SCUTPA”), SC Code Ann. § 15-32-530, breach of the South Carolina Unfair Trade and Practice Act, and requested damages for emotional distress and mental anguish, punitive damages, and treble damages (collectively, the “Plaintiffs' Claims”)[....]
NOW, THEREFORE, In consideration of the foregoing and the promises, covenants, and such other valuable consideration as set forth herein, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.
1. Release by the Plaintiffs . The Plaintiffs, for themselves and their agents, executors, trustees, legal representatives, employees, independent contractors, couriers, insurers, attorneys, heirs, successors, and assigns, release and forever discharge the Defendants and PIIC, together with their agents, executors,
trustees, legal representatives, shareholders, members, employees, independent contractors, couriers, insurers, attorneys, predecessors, parent and subsidiary companies, related entities, divisions, affiliates, officers, directors, members, manager, shareholders, heirs, successors, and assigns (collectively, the “Defendant Released Parties”), of and from any and all manner of claims, demands, warranties, actions, causes of action, suits, judgments, debts, sums of money, and damages of whatsoever nature, present or future, known or unknown, developed or undeveloped, foreseen or unforeseen, legal or equitable, state or federal, arising out of or in any way related to the Occurrence, including but not limited to the Plaintiffs' Claims or any claims that were asserted, could have been asserted, or should have been asserted in the Lawsuit (collectively, the “Plaintiff Released Claims”).(Id. at 11-12.)
“PIIC” stands for Philadelphia Indemnity Insurance Company, the Defendant's liability insurance carrier.
Defendant attached Plaintiff's complaint in the Georgia case as an exhibit to its Motion. (Dkt. No. 13-2.) Review of that complaint confirms that Plaintiff's claims in this case arise from the same events as his claims in the Georgia case. (Id.) As such, Plaintiff released the claims he now attempts to bring against Defendant by entering into the Settlement Agreement. (Id.)
Accordingly, Plaintiff must present evidence of fraud or misrepresentation to show that the Settlement Agreement is invalid and defeat Defendant's Motion. House v. Aiken Cnty. Nat. Bank, 956 F.Supp. 1284, 1290 (D.S.C.), aff'd, 103 F.3d 118 (4th Cir. 1996). However, Plaintiff fails to provide any evidence beyond his own conclusory allegations to show that he was induced to enter the Settlement Agreement because of fraud or misrepresentation and the undersigned therefore recommends that Defendant's Motion be granted. See id.; see also Reed v. Big Water Resort, LLC, No. 2:14-CV-1583-DCN-MGB, 2016 WL 7435620, at *11-12 (D.S.C. Apr. 5, 2016), adopted, 2016 WL 2935891 (D.S.C. May 20, 2016).
At the outset, the undersigned notes that Plaintiff does not dispute that he signed the Settlement Agreement, nor does he dispute that he had a full and fair opportunity to review the Settlement Agreement before signing it. (Dkt. No. 25 at 3-13). Further, he does not claim that Defendant breached any portion of the contract. (Id.) Rather, Plaintiff contends that the Settlement Agreement is unenforceable because: (1) a Superior Court Judge copied on an Order in Plaintiff's Georgia case was a Facebook friend of opposing counsel; (2) opposing counsel “engaged in overreaching and fraudulent inducement with incessant threats for motions for attorney fees and sanctions”; (3) “the Release is unenforceable and against public policy”; (4) the signatures to the Settlement Agreement are “fraudulent and unauthenticated”; (5) Plaintiff is not in possession of settlement funds; and (6) the Chatham County Magistrate's Court told Plaintiff “to take his claims back across the river.” (Id. at 1-2.) Upon review of the record and the parties' briefings, the undersigned finds that Plaintiff's contentions have no bearing on the validity of the Settlement Agreement and/or are unsupported by the record evidence.
For example, Plaintiff contends that the Settlement Agreement is unenforceable because “Defendants['] signatures were not notarized and it is unclear who were the purported witnesses,” yet he points to no legal authority indicating that the Settlement Agreement needed to be notarized in order to be enforceable. (Dkt. No. 25 at 4.) Regardless, Defendant provides affidavits from each signatory confirming the legitimacy of their respective signatures, as well as a re-executed signature page to quell Plaintiff's concerns. (Dkt. Nos. 27-1, 26-2, 27-3, 27-5.)
Similarly, Plaintiff asserts that his wife should not have been included as a party to the Settlement Agreement, but he does not explain how or why her inclusion as a party to the Settlement Agreement renders it unenforceable. (Dkt. No. 25 at 5.) As Defendant explains, Plaintiff's wife “was included as a party to the Settlement Agreement because she is a co-owner of the Residence and thus had potential claims of her own arising out of the Occurrence that needed to be addressed.” (Dkt. No. 27 at 4.) Further, Plaintiff's wife is not a party to this litigation, so this argument has no bearing on the motion before the Court. (See generally Dkt. No. 1.)
In the same vein, Plaintiff claims that a Superior Court Judge copied on an Order in his Georgia case was a Facebook friend of opposing counsel, but he does not explain how this impacted the Settlement Agreement, if at all.(See generally Dkt. No. 25.) He also claims that the Chatham County Magistrate's Court told him “to take his claims back across the river,” but provides no evidence beyond his own self-serving assertion that this statement was made. (Id. at 2.) Plaintiff also does not provide evidence that the Magistrate's Court was aware of the Settlement Agreement prior to making such statement. (See generally id.) Regardless, Plaintiff again does not explain how or why the statement has any bearing on the enforceability of Settlement Agreement. (Id.)
The Judge assigned to Plaintiff's Georgia case explained during a hearing that the Judge about which Plaintiff complains was inadvertently copied on the relevant Order. (Dkt. No. 25-5 at 4.)
Next, Plaintiff contends that the Settlement Agreement is not enforceable because Plaintiff returned the “settlement funds,” (i.e., the money paid to him by Defendant pursuant to the Settlement Agreement). (Id. at 5.) He seems to contend that because he returned this money, the Settlement Agreement has been rescinded. (Id. at 6.) However, as Defendant accurately notes, “there is no authority for the proposition that a claimant can renege on a valid and binding settlement agreement simply by returning, or refusing to accept, the settlement funds.” (Dkt. No. 27 at 4.) The undersigned agrees. While returning consideration received pursuant to an agreement is a prerequisite for rescinding that agreement, it does not automatically do so. Instead, Plaintiff must show a justifiable basis warranting recission of the Settlement Agreement. See Jumper v. Queen Nab Lumber Company, 115 S.C. 452, 476 (1921) (noting that rescission of a contract is allowed when there is evidence of misrepresentation or concealment); State Farm Mut. Auto. Ins. Co. v. Turner, 303 S.C. 99, 101-02 (Ct. App. 1990) (“South Carolina law allows for a contract to be rescinded for a unilateral mistake when that mistake has been induced by fraud, deceit, misrepresentation, concealment, or imposition of the party opposed to rescission, without negligence on the part of the party claiming rescission, or when the mistake is accompanied by very strong and extraordinary circumstances which would make it a great wrong to enforce the agreement.”). Plaintiff has failed to do so. Indeed, the record contains no evidence of fraudulent circumstances (or any other conditions) that could warrant recission. (See generally Dkt. No. 25.) Plaintiff's argument is therefore unconvincing.
Defendant does not dispute that Plaintiff returned the settlement funds and notes that its insurer is prepared to issue a new settlement check to Plaintiff upon conclusion of this lawsuit. (Dkt. No. 27 at 4.)
In attempting to show fraudulent inducement, Plaintiff summarily asserts that one of Defendant's attorneys in his previous case in Georgia, Catherine Bowman, “induced” him and his wife into signing the Settlement Agreement. (Id. at 7.) However, as with his other arguments, Plaintiff provides no detail as to how Bowman went about this, and no evidence in support of his contentions. (Id.) To the extent Plaintiff asserts that Bowman induced him into signing the Settlement Agreement by stating that she would pursue attorney's fees and sanctions, the email correspondence he submits to support this assertion demonstrates that Bowman respectfully informed Plaintiff that Defendant planned to assert its right to request attorney's fees and sanctions should litigation so require. (Dkt. No. 25-2 at 2.) This does not constitute fraudulent inducement.
Further, the terms of the Settlement Agreement are fair to Plaintiff and not one-sided, which indicates that Plaintiff was not fraudulently induced into signing it. (See generally Dkt. No. 25-7 at 11-16.) In fact, the record reflects that Plaintiff participated in drafting the Settlement Agreement and that he received more than six times the amount of money he paid for Defendant's allegedly faulty work. (Dkt. No. 27 at 5-6.) Such conditions do not suggest unfair bargaining power, as Plaintiff contends.It is also worth reiterating that Plaintiff does not dispute that he had a full and fair opportunity to review the Settlement Agreement prior to signing it. See Burwell v. S.C. Nat. Bank, 288 S.C. 34, 39 (1986) (“One cannot complain of fraud and misrepresentation in the contents of a document if the truth could have been ascertained by reading it.”); Sydnor v. Conseco Fin. Servicing Corp., 252 F.3d 302, 306 (4th Cir. 2001) (noting that “an elementary principle of contract law is that a party signing a written contract has a duty to inform himself of its contents before executing it”).
To the extent Plaintiff claims that the Settlement Agreement is a “take-it-or-leave-it” contract of adhesion, the undersigned notes that Plaintiff was not required to sign the Settlement Agreement and could have proceeded with litigation. The undersigned also notes that Plaintiff appears to have assisted in drafting it. Even if the Settlement Agreement could be construed as a contract of adhesion, the terms of the Settlement Agreement are fair to Plaintiff, negating any inference of unconscionability. See Damico v. Lennar Carolinas, LLC, No. 2020-001048, 2022 WL 4231032, at *6 (S.C. Sept. 14, 2022) (“[A]dhesive contracts are not unconscionable in and of themselves so long as the terms are even-handed”) (emphasis in original)).
To the extent Plaintiff argues that the Settlement Agreement is unclear, overly broad and/or against public policy, these arguments also lack merit. The release provision of the Settlement Agreement plainly and succinctly describes the claims that Plaintiff is agreeing to release, and those claims are limited to Defendant's past actions underlying Plaintiff's complaint in the Georgia case. See Fisher v. Stevens, 355 S.C. 290, 297 (Ct. App. 2003) (“An exculpatory agreement will be held to contravene public policy if it is so broad that it would absolve [the defendant] from any injury to the [plaintiff] for any reason.” (internal quotation marks and citation omitted)). In other words, the release is not overly broad, ambiguous, or in violation of public policy, as Plaintiff contends. (Dkt. No. 25 at 8-9.)
Ultimately, the record reflects that the parties mutually agreed to fair and reasonable terms and conditions that are memorialized in the Settlement Agreement. Those terms and conditions include Plaintiff's release of the claims set forth in this civil action. (See Dkt. No. 25-7 at 12.) Plaintiff has simply presented no evidence to suggest fraud or misrepresentation, and has failed to raise a genuine issue of material fact about the validity, enforceability, and applicability of the Settlement Agreement. (See generally Dkt. No. 25.) Unfortunately for Plaintiff, “having second thoughts about the results of a settlement agreement does not justify setting aside an otherwise valid agreement.” Young v. F.D.I.C., 103 F.3d 1180, 1195 (4th Cir. 1997). Further, the Settlement Agreement plainly bars the claims asserted in Plaintiff's Complaint. (Dkt. No. 25-7 at 12.) Defendant is therefore entitled to judgment as a matter of law, and its Motion (Dkt. No. 13) should be granted.
The undersigned notes that, contrary to Plaintiff's assertions, his contentions do not give rise to questions of fact that require a plenary evidentiary hearing. (Dkt. No. 25 at 13.)
CONCLUSION
For the foregoing reasons, the undersigned RECOMMENDS that Defendant's Motion to Dismiss or, in the alternative, Motion for Summary Judgment (Dkt. No. 13) be GRANTED.
IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).