{ "id": 12129700, "name": "VIRGEL PETTY and wife, MARTHA P. PETTY, Plaintiffs v. J.D. OWEN d/b/a OWEN CONSTRUCTION CO., Defendant", "name_abbreviation": "Petty v. Owen", "decision_date": "2000-11-07", "docket_number": "No. COA99-1139", "first_page": "494", "last_page": "503", "citations": [ { "type": "official", "cite": "140 N.C. App. 494" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "228 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "228 S.E.2d 502", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "228 S.E.2d 498", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "230 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "732" } ], "opinion_index": 0 }, { "cite": "291 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558020, 8558061, 8558031, 8558077, 8558046 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0323-01", "/nc/291/0323-04", "/nc/291/0323-02", "/nc/291/0323-05", "/nc/291/0323-03" ] }, { "cite": "228 S.E.2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "30 N.C. App. 731", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555709 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/30/0731-01" ] }, { "cite": "326 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "407 S.E.2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2555416 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0779-01" ] }, { "cite": "308 S.E.2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "330", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4764316 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "583" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0580-01" ] }, { "cite": "144 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575753 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0482-01" ] }, { "cite": "370 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "91 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524603 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/91/0107-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-138", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "164 S.E.2d 289", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560794 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0505-01" ] }, { "cite": "240 S.E.2d 406", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571030 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0120-01" ] }, { "cite": "214 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561572, 8561547, 8561651, 8561525, 8561622 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0258-03", "/nc/287/0258-02", "/nc/287/0258-05", "/nc/287/0258-01", "/nc/287/0258-04" ] }, { "cite": "212 S.E.2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "25 N.C. App. 131", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551587 ], "year": 1975, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc-app/25/0131-01" ] }, { "cite": "163 S.E.2d 775", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "781" } ], "opinion_index": 0 }, { "cite": "274 N.C. 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560423 ], "year": 1968, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0398-01" ] }, { "cite": "90 S.E.2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "243 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624967 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/243/0364-01" ] }, { "cite": "280 S.E.2d 780", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "782", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 290", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520807 ], "year": 1981, "pin_cites": [ { "page": "292", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0290-01" ] }, { "cite": "183 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1936, "opinion_index": 0 }, { "cite": "209 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221592 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nc/209/0270-01" ] }, { "cite": "411 U.S. 911", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9891, 10053, 10282, 10222, 9719, 9823 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/us/411/0911-01", "/us/411/0911-03", "/us/411/0911-02", "/us/411/0911-05", "/us/411/0911-04", "/us/411/0911-06" ] }, { "cite": "192 S.E.2d 290", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564291 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0272-01" ] }, { "cite": "190 S.E.2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 512", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551850 ], "year": 1972, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0512-01" ] }, { "cite": "250 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "253", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "296 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566069 ], "year": 1979, "pin_cites": [ { "page": "361", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0357-01" ] }, { "cite": "154 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "555" } ], "opinion_index": 0 }, { "cite": "270 N.C. 323", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567865 ], "year": 1967, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0323-01" ] }, { "cite": "470 S.E.2d 16", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "22" } ], "opinion_index": 0 }, { "cite": "343 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798768 ], "year": 1996, "pin_cites": [ { "page": "212" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0202-01" ] }, { "cite": "214 S.E.2d 98", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "104", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "287 N.C. 192", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561318 ], "year": 1975, "pin_cites": [ { "page": "202", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0192-01" ] }, { "cite": "497 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "129 N.C. App. 174", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11648904 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc-app/129/0174-01" ] }, { "cite": "244 S.E.2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 236", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562180 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0236-01" ] }, { "cite": "1989 N.C. Sess. Laws 1810", "category": "laws:leg_session", "reporter": "N.C. Sess. Laws", "pin_cites": [ { "parenthetical": "providing that persons who erect manufactured modular structures either have a valid contractor's license or comply with the rules of the Building Code Council" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 87.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 143-139.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 87-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 6, "opinion_index": 0 }, { "cite": "162 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559762 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0264-01" ] }, { "cite": "325 S.E.2d 33", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "34" } ], "opinion_index": 0 }, { "cite": "72 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527060 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/nc-app/72/0516-01" ] }, { "cite": "341 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4714316, 4718543, 4714034, 4715801, 4718302 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0589-02", "/nc/315/0589-01", "/nc/315/0589-04", "/nc/315/0589-03", "/nc/315/0589-05" ] }, { "cite": "337 S.E.2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520920 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0296-01" ] } ], "analysis": { "cardinality": 931, "char_count": 22690, "ocr_confidence": 0.766, "pagerank": { "raw": 2.5574225950152617e-07, "percentile": 0.8149996389750909 }, "sha256": "e247c60a83209f25772d68981b0f400aa538fbb840257149086033aca9bf3c5d", "simhash": "1:ab2994ea66bb34b2", "word_count": 3661 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and HUNTER concur." ], "parties": [ "VIRGEL PETTY and wife, MARTHA P. PETTY, Plaintiffs v. J.D. OWEN d/b/a OWEN CONSTRUCTION CO., Defendant" ], "opinions": [ { "text": "WALKER, Judge.\nPlaintiffs entered into a residential construction contract (contract) with defendant on 11 February 1997, whereby defendant agreed to furnish labor and materials to erect a modular dwelling manufactured by Nationwide Homes, Incorporated (Nationwide), a licensed North Carolina general contractor. At the time, defendant was not a licensed general contractor in North Carolina. Under the original contract, plaintiffs were to pay defendant $183,642.00 less a down payment of $1,500. This amount included the base price of the home as well as numerous options. On 15 May 1997, plaintiffs executed a note and deed of trust in favor of defendant to cover the contract price. The note was to be paid in full by 15 July 1997, when plaintiffs were to obtain permanent financing at the completion of construction of their modular home. The contract price was later increased to $199,022.00 to allow for additional options in the home\u2019s construction. Because defendant was not a licensed general contractor, he posted a modular building set-up contractor license bond with Guilford County Planning and Development Department (County) on 3 April 1997.\nPlaintiffs\u2019 home arrived from Nationwide in fully constructed sections, complete with all of the options they had selected, including the garage. For this reason, defendant\u2019s work was limited to pouring the home\u2019s foundation, assembling the sections, and overseeing the installation of the heating, air conditioning, plumbing and electrical work by sub-contractors. Defendant completed this work, and on 9 July 1997, the County issued a certificate of occupancy certifying that the erection and construction fully complied with the North Carolina Building Code (Code) and other applicable ordinances.\nAs the time for closing on the loan approached, plaintiffs informed defendant that they were unable to obtain permanent financing for the entire amount owed under the contract, leaving a balance of $33,185.67 still owed to defendant. It was agreed by the parties that plaintiffs would execute a second note and deed of trust in favor of defendant for $33,185.67 and defendant would in turn execute a lien waiver.\nPlaintiffs failed to make the payment due under the second note and deed of trust on 31 August 1997. After defendant filed a claim of lien and demanded payment, plaintiffs filed this action on 19 October 1998 seeking to have declared void the two notes and deeds of trust and defendant\u2019s claim of lien.\nOn 11 January 1999, defendant filed an answer and counterclaimed for $33,187.00 plus interest and attorney fees. Plaintiffs and defendant then filed motions for summary judgment, and on 27 April 1999, the trial court granted plaintiffs\u2019 motion for summary judgment as to their claim on the first note and deed of trust and denied plaintiffs\u2019 motion for summary judgment as to the second note and deed of trust and claim of lien. Defendant\u2019s motion for summary judgment was allowed as to the second note and deed of trust and claim of lien. Judgment was entered in defendant\u2019s favor in the amount of $44,489.26, which included interest and attorney fees.\nOn appeal, plaintiffs contend the trial court erred by denying their motion for summary judgment and in granting defendant\u2019s motion for summary judgment as to the second note and deed of trust and claim of lien. In support of their contention, plaintiffs argue they presented evidence that the residential construction contract was not enforceable because: (1) defendant was not a licensed general contractor as required by law; and (2) defendant signed a lien waiver after plaintiffs signed the second note and deed of trust, thereby relinquishing his right to collect under these instruments.\nAt the outset, we note that summary judgment is appropriate only \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1999); See also Pressman v. UNC-Charlotte, 78 N.C. App. 296, 337 S.E.2d 644 (1985), disc. review allowed, 315 N.C. 589, 341 S.E.2d 28 (1986).\nWe first address whether defendant was required to be a licensed general contractor in order to enter into a residential construction contract calling for the erection of a modular home.\nIt is well settled in North Carolina that a general contractor within the meaning of G.S. 87-1 who has no license may not recover for the owner\u2019s breach of the contract, or for the value of the work and services furnished or materials supplied under the contract on the theory of unjust enrichment.\nHarrell v. Clarke, 72 N.C. App. 516, 517, 325 S.E.2d 33, 34 (1985), citing Builders Supply v. Midyette, 274 N.C. 264, 162 S.E.2d 507 (1968). However, defendant contends that because he complied with the requirement of posting a surety bond with the County, the contract is enforceable. Defendant further asserts that the legislature carved out an exception to the general contractor license requirement of N.C. Gen. Stat. \u00a7 87-1 when it adopted the following statutory language in N.C. Gen. Stat. \u00a7 143-139.1:\nThe Building Code Council may also adopt rules to insure that any person that is not licensed, in accordance with G.S. 87-1, and that undertakes to erect a North Carolina labeled manufactured modular building, meets the manufacturer\u2019s installation instructions and applicable provisions of the State Building Code. Any such person, before securing a permit to erect a modular building, shall provide the code enforcement official proof that he has in force for each modular building to be erected a $5,000 surety bond insuring compliance with the regulations of the State Building Code governing installation of modular buildings.\nN.C. Gen. Stat. \u00a7\u00a7 87.1, 143-139.1 (1999); Act of July 15, 1989, Ch. 653, 1989 N.C. Sess. Laws 1810 (providing that persons who erect manufactured modular structures either have a valid contractor\u2019s license or comply with the rules of the Building Code Council).\nPlaintiffs contend that while the plain language of this provision requires contractors to post a $5,000 surety bond, it does not provide an exception to the license requirement for general contractors who erect modular homes. Plaintiffs further argue that a literal interpretation of this statute merely grants the Building Code Council (Council) the authority to adopt rules for the purpose of insuring compliance with manufacturer\u2019s instructions and the Code.\nSince our analysis invokes interpretation of two separate statutes, we are compelled to discern the legislative intent. In re Banks, 295 N.C. 236, 244 S.E.2d 386 (1978). An intent analysis is also warranted by the fact that N.C. Gen. Stat. \u00a7 143-139.1 and \u00a7 87-1 are in pari materia since they relate to the same subject and have a common purpose. Taylor v. City of Lenoir, 129 N.C. App. 174, 497 S.E.2d 715 (1998). \u201cSuch statutes should be reconciled with each other when possible, and any irreconcilable ambiguity should be resolved so as to effectuate the true legislative intent.\u201d Comr. of Insurance v. Automobile Rate Office, 287 N.C. 192, 202, 214 S.E.2d 98, 104 (1975) (citations omitted).\nOur Supreme Court has held that \u201c[t]he will of the legislature \u2018must be found from the language of the act, its legislative history and the circumstances surrounding its adoption which throw light upon the evil sought to be remedied.\u2019 \u201d State v. Oliver, 343 N.C. 202, 212, 470 S.E.2d 16, 22 (1996), citing Milk Commission v. Food Stores, 270 N.C. 323, 332, 154 S.E.2d 548, 555 (1967). Moreover, \u201cwhere a literal interpretation of the language of a statute will lead to absurd results, or contravene the manifest purpose of the Legislature, as otherwise expressed, the reason and purpose of the law shall control and the strict letter thereof shall be disregarded.\u201d Mazda Motors v. Southwestern Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 (1979) (citations omitted). \u201cThe courts will control the language to give effect to the legislative intent.\u201d Variety Theatres v. Cleveland County, 15 N.C. App. 512, 514, 190 S.E.2d 227, 228, affirmed, 282 N.C. 272, 192 S.E.2d 290 (1972), and appeal dismissed, 411 U.S. 911 (1973), quoting Ikerd v. R. R., 209 N.C. 270, 183 S.E.2d 402 (1936).\nIn this regard, we note that at the time N.C. Gen. Stat. \u00a7 143-139.1 was amended, portions of \u00a7 87-1 were also amended under the same legislation. N.C. Gen. Stat. \u00a7\u00a7 87-1, 143-139.1. N.C. Gen. Stat. \u00a7 87-1 was rewritten to include within its definition of a general contractor \u201cany person, firm or corporation that is not licensed as a general contractor ... [who] undertakes to erect a North Carolina labeled manufactured modular building meeting the North Carolina State Building Code,\u201d or one who undertakes construction costing $45,000 or more. N.C. Gen. Stat. \u00a7 87-1; Ch. 653, 1989 N.C. Sess. Laws at 1811. On the other hand, N.C. Gen. Stat. \u00a7 143-139.1 provides that an unlicensed general contractor may erect a modular building upon posting the required surety bond. N.C. Gen. Stat. \u00a7\u00a7 87-1, 143-139.1; Ch. 653, 1989 N.C. Sess. Laws at 1810-1812. It is thus clear that these two statutes, when read together, evidence an intent to exempt a general contractor who erects modular buildings from having a license if the surety bond requirement is met.\nIn addition, \u201c[w]hen the meaning of a statute is in doubt, reference may be made to the title and context of an act to determine the legislative purpose.\u201d Preston v. Thompson, 53 N.C. App. 290, 292, 280 S.E.2d 780, 782 (1981) (citations omitted). \u201cHowever, the title does not control the text when it is clear.\u201d Blowing Rock v. Gregorie, 243 N.C. 364, 90 S.E.2d 898 (1956). This is because \u201c[t]he title is part of the bill when introduced, being placed there by its author, and probably attracts more attention than any other part of the proposed law, and if it passes into law the title thereof is consequently a legislative declaration of the tenor and object of the Act .... Consequently, when the meaning of an act is at all doubtful, all the authorities now concur that the title should be considered.\u201d Sykes v. Clayton, Comr. of Revenue, 274 N.C. 398, 406, 163 S.E.2d 775, 781 (1968).\nThe title of the subject amendment to N.C. Gen. Stat. \u00a7 143-139.1 reads: \u201cAN ACT TO PROVIDE THAT PERSONS WHO ERECT MANUFACTURED MODULAR STRUCTURES EITHER HAVE A VALID CONTRACTORS\u2019 LICENSE OR COMPLY WITH RULES OF THE BUILDING CODE COUNCIL.\u201d Ch. 653, 1989 N.C. Sess. Laws at 1810-1811. Thus, the title also evidences a legislative intent to exempt general contractors from the licensing requirement so long as they meet the surety bond requirement.\nMoreover, \u201c[a]n administrative interpretation of a statute, acquiesced in over a long period of time, is properly considered in the construction of the statute by the courts.\u201d Duggins v. Board of Examiners, 25 N.C. App. 131, 137, 212 S.E.2d 657, 662, cert. allowed, 287 N.C. 258, 214 S.E.2d 430 (1975), and affirmed, 294 N.C. 120, 240 S.E.2d 406 (1978). \u201cBut an administrative interpretation can never be considered when in direct conflict with the intent and purpose of the act, or when in conflict with the interpretation of the courts.\u201d Duke Power Co. v. Clayton, Comr. of Revenue, 274 N.C. 505, 164 S.E.2d 289 (1968).\nThe North Carolina Department of Insurance (Department of Insurance) is charged with general supervision over the administration and enforcement of the Code. The Department of Insurance has determined, as evidenced in memorandums dated 16 March 1990 and 10 March 1998, that general contractors who erect modular buildings are exempt from the licensing requirement if they meet the bond requirements. This interpretation by the Department of Insurance is also in accord with the Code, which now provides:\nIn accordance with General Statutes G.S. 87-1 and G.S. 143-139.1 any person, firm or corporation that undertakes to erect a modular building must have either a valid North Carolina General Contractors License or provide a $5,000 surety bond for each modular building to be erected.\nVIII N.C. State Bldg. Code \u00a7 206.4 (1994). Under the authority granted by the legislature, the Council adopted the Code for the purpose of ensuring safe buildings by regulating their construction. N.C. Gen. Stat. \u00a7 143-138 (1999); In re Appeal of Medical Center, 91 N.C. App. 107, 370 S.E.2d 597 (1988); State v. Walker, 265 N.C. 482, 144 S.E.2d 419 (1965).\nFurthermore, we are convinced the legislature did not intend that everyone who engages in the erection of modular homes be licensed as a general contractor and be required to meet the bonding requirement of N.C. Gen. Stat. \u00a7 143-139.1.\nPlaintiffs further contend that under the rule of Brady v. Fulghum, 309 N.C. 580, 308 S.E.2d 327 (1983), superseded on other grounds as stated in Hall v. Simmons, 329 N.C. 779, 407 S.E.2d 816 (1991), and Harrell, 72 N.C. App. 516, 325 S.E.2d 33, the contract between the parties is unenforceable. However, our review of these cases reveals that they are not applicable to the issue in this case. In Brady, our Supreme Court held that \u201c[generally, contracts entered into by unlicensed construction contractors, in violation of a statute passed for the protection of the public, are unenforceable by the contractor.\u201d Brady, 309 N.C. at 583, 308 S.E.2d at 330 (citation omitted). However, the present case is distinguishable because the contractor constructed a conventional residence and not a modular home. Harrell is likewise distinguishable for the same reason. Harrell, 72 N.C. App. 516, 326 S.E.2d 33.\nIn sum, based on our interpretations of N.C. Gen. Stat. \u00a7\u00a7 87-1 and 143-139.1, the public will be protected since modular buildings must be constructed according to the Code. For the reasons set forth above, we hold that a person or entity who undertakes to erect a modular home need not be licensed if he meets the surety bond requirements.\nPlaintiffs also argue that if N.C. Gen. Stat. \u00a7 143-139.1 is found by this Court to be an exception to the licensing requirement regarding the erection of modular homes, it does not apply in the instant case. In so doing, plaintiffs rely on the following statements made by the Department of Insurance while addressing modular surety bonds in a memorandum dated 10 March 1998:\nN.C.G.S. \u00a7 143-139.1 only applies to the set-up and installation of the modular unit itself. The only permissible building activity, other than the construction of the foundation for the modular unit, is the setting and field connections of the labeled manufactured modular unit. N.C.G.S. \u00a7 143-139.1 does not apply to additional activities .... If the cost of these additional construction activities meets or exceeds the thirty thousand dollar ($30,000) limit established by N.C.G.S. \u00a7 87-1, then a general contractor\u2019s license will be required. In any case, these activities are not included in the scope of the modular surety bond.\nPlaintiffs therefore contend that defendant exceeded this $30,000 limit because of the additional activities such as constructing a basement, attaching a garage, installing hardwood flooring, a HVAC system, and a septic system. While the record indicates that plaintiffs\u2019 modular home arrived from Nationwide in fully constructed sections and complete with all of the options that plaintiffs had ordered, the record is unclear as to the extent of defendant\u2019s activities in these areas. However, even assuming the above activities were the defendant\u2019s responsibility, we conclude that these activities fall within the erection and installation of the modular home and are thus within the scope of the surety bond posted with the County.\nWe last address whether summary judgment was proper as to the lien waiver. As defendant points out, this issue is similar to that in Construction Co. v. Coan, 30 N.C. App. 731, 228 S.E.2d 497, disc. review denied, 291 N.C. 323, 230 S.E.2d 676 (1976) where defendants contracted with plaintiff to construct a motel. When the completion date approached, the extras that defendants wanted exceeded the original contract price. Id. at 732, 228 S.E.2d 498. The parties agreed upon a final amount for which defendants executed two notes. Id. In return and as part of the agreement, plaintiff executed a lien waiver \u201cacknowledging payment in full and waiving any lien rights in the project[,]\u201d in order to enable defendants to obtain financing from their lender. Id. After defendants failed to make payments due on the notes, plaintiff filed suit and moved for summary judgment which was granted. Id. This Court upheld the trial court\u2019s entry of summary judgment because the evidence was \u201cclearly sufficient to show an accord and satisfaction.\u201d Id. at 738, 228 S.E.2d 502. This Court held that the trial court correctly found that the agreement was supported by adequate consideration because \u201cdefendants received the [lien waiver] in return for the notes. By that instrument, plaintiff admitted being fully paid on the underlying obligation and also waived its rights to file and perfect mechanic\u2019s and materialmen\u2019s liens .... That the lien waiver constituted value to the defendants is evidenced by their admission of using [it] to obtain permanent financing.\u201d Id. at 739-40, 228 S.E.2d 502-03.\nPlaintiffs attempt to distinguish the case at hand from Coan on the basis that the second note and deed of trust in this case were signed before the lien waiver and therefore were not signed in consideration of it. Id. However, in both cases, the parties reached an agreement whereby one party would execute a note and deed of trust, and in return, the other party would execute a lien waiver. Id. It is irrelevant which documents were signed first.\nPlaintiffs further assert that Coan has no bearing on this case because the lack of a disputed amount makes accord and satisfaction inapplicable. However, this Court in Coan also affirmed the trial court\u2019s finding that \u201c[t]he making and delivery of the two notes which are the subject matter of this action by defendants was outside the scope of the contract between plaintiff and defendants for the construction of the [motel], since such contract did not provide for or require the defendants to make and deliver such notes.\u201d Id. at 734, 228 S.E.2d 499. We agree that accord and satisfaction is not applicable because there is no dispute as to the amount plaintiffs owed to defendant. However, as in Coan, the execution of the second note and deed of trust by the plaintiffs in exchange for defendant\u2019s lien waiver was outside the scope of the existing residential construction contract and thus constituted a new agreement between the parties. Id.\nFor the foregoing reasons, we conclude that summary judgment was properly granted on behalf of defendant and properly denied on plaintiffs\u2019 claims.\nAffirmed.\nJudges LEWIS and HUNTER concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Richard I. Shope for plaintiffs-appellants.", "Robinson & Lawing, L.L.R, by Robert J. Rawing and H. Brent Helms, for defendant-appellee." ], "corrections": "", "head_matter": "VIRGEL PETTY and wife, MARTHA P. PETTY, Plaintiffs v. J.D. OWEN d/b/a OWEN CONSTRUCTION CO., Defendant\nNo. COA99-1139\n(Filed 7 November 2000)\n1. Construction Claims\u2014 residential construction contract\u2014 modular home \u2014 no general contractor license \u2014 bond requirements met\nA defendant who met the $5,000 surety bond requirements under N.C.G.S. \u00a7 143-139.1 was not required to be a licensed general contractor under N.C.G.S. \u00a7 87-1 in order to enter into a residential construction contract with plaintiffs for the erection of a modular home, because: (1) N.C.G.S. \u00a7 87-1 and N.C.G.S. \u00a7 143-139.1 read together evidence an intent to exempt a general contractor who erects modular buildings from having a license if the surety requirement is met; (2) the title of N.C.G.S. \u00a7 143-139.1 evidences a legislative intent to exempt general contractors from the licensing requirement so long as they meet the surety bond requirement; (3) the North Carolina Department of Insurance, charged with general supervision over the administration and enforcement of the building code, has determined that general contractors who erect modular buildings are exempt from the licensing requirement if they meet the bond requirements; (4) the legislature did not intend that everyone who engages in the erection of modular homes be licensed as a general contractor and be required to meet the bonding requirement of N.C.G.S. \u00a7 143-139.1; and (5) the two cases cited by plaintiffs in an attempt to make the contract unenforceable are inapplicable since the contractor in those cases constructed a conventional residence and not a modular home.\n2. Construction Claims\u2014 modular surety bonds \u2014 exemption from obtaining general contractor\u2019s license \u2014 additional activities within scope of bond\nAlthough plaintiffs rely on the Department of Insurance\u2019s 10 March 1998 memorandum on modular surety bonds to contend that defendant should not be exempt from the licensing requirement under N.C.G.S. \u00a7 87-1 regarding the erection of modular homes since he exceeded the $30,000 limit on additional construction activities, the additional activities including constructing a basement, attaching a garage, installing hardwood flooring, a HVAC system, and a septic tank all fall within the erection and installation of the modular home under N.C.G.S. \u00a7 143-139.1 and are thus within the scope of the surety bond posted with the county.\n3. Contracts\u2014 construction of modular home \u2014 additional options \u2014 lien waiver in exchange for second note\u2014 consideration\nThe trial court properly granted summary judgment in favor of defendant on his claim on a second promissory note where plaintiffs contracted with defendant to construct a modular home, plaintiffs executed a second note for additional options they wanted to add that exceeded the original contract price, defendant executed a lien waiver in order to enable plaintiffs to obtain financing from their lender, and plaintiffs thereafter failed to make payments due on the note, because: (1) the agreement was supported by adequate consideration based on the fact that plaintiffs received the lien waiver in exchange for the note, and it was irrelevant which documents were signed first; and (2) the execution of the second note and a deed of trust by plaintiffs in exchange for defendant\u2019s lien waiver was outside the scope of the existing residential construction contract and thus constituted a new agreement between the parties.\nAppeal by plaintiffs from judgment entered 27 April 1999 by Judge Judson D. DeRamus and filed 29 April 1999 in Guilford County Superior Court. Heard in the Court of Appeals 16 August 2000.\nRichard I. Shope for plaintiffs-appellants.\nRobinson & Lawing, L.L.R, by Robert J. Rawing and H. Brent Helms, for defendant-appellee." }, "file_name": "0494-01", "first_page_order": 526, "last_page_order": 535 }