{
  "id": 4176461,
  "name": "LATO HOLDINGS, LLC, Plaintiff v. BANK OF NORTH CAROLINA, Defendant",
  "name_abbreviation": "Lato Holdings, LLC v. Bank of North Carolina",
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    "judges": [
      "Judges STEPHENS and BEASLEY concur."
    ],
    "parties": [
      "LATO HOLDINGS, LLC, Plaintiff v. BANK OF NORTH CAROLINA, Defendant"
    ],
    "opinions": [
      {
        "text": "STROUD, Judge.\nPlaintiff and defendant appeal a summary judgment order which granted summary judgment in favor of defendant and dismissed plaintiff\u2019s claims with prejudice. For the following reasons, we affirm.\nI.Background\nOn 30 May 2008, plaintiff filed a verified complaint alleging the following:\n1. Plaintiff is a limited liability company duly organized under the laws of the state of North Carolina with its principal place of business in Guilford County, North Carolina.\n2. The Defendant is a corporation duly organized under the laws of the state of North Carolina and doing business in Guilford County, North Carolina.\n3. The real property that is the subject of this lawsuit (the \u201cProperty\u201d) is a 27.844 acre tract of land located in Guilford County and more particularly described in that certain deed of trust recorded in Book 6373, Page 0075 of the Guilford County Registry.\n4. At all times relevant herein the Defendant held a first deed of trust on the Property, which deed of trust is recorded in Book 6373, Page 0075 of the Guilford County Registry (the \u201cDeed of Trust\u201d).\n5. The Deed of Trust specifically granted to Defendant the right to preserve and protect its collateral should the grantor of the Deed of Trust fail to do so.\n6. This action arises out of a series of agreements entered into between Plaintiff and the Defendant, acting through its duly authorized agents and representatives, Richard Calicutt and Brent Bridges, wherein Defendant contracted with Plaintiff in July 2007 to provide and furnish various labor and services .... The labor and services included but was not limited to site cleanup, dirt removal and replacement, and sloping and stabilization of embankments.\n7. At the time that Defendant contracted with Plaintiff for the work described above, the owner of the Property, who was also the grantor under the Deed of Trust, had: i) discontinued the construction project located on the Property; ii) left the Property in a hazardous condition and in a condition that would subject the Property to fines and penalties from the City of High Point for violating environmental rules and regulations; and iii) failed to take any steps to preserve or protect the Property.\n8. At the time that Defendant contracted with Plaintiff for the work described above, the Defendant had initiated foreclosure proceedings under the terms of the Deed of Trust.\n9. Plaintiff commenced the work on July 26, 2007, with the knowledge, consent and at the direction of the Defendant, and duly provided the work necessary to preserve and protect the Property and to avoid being fined by the City of High Point in accordance with its agreement with Defendant.\n10. On or about August 21, 2007, Plaintiff finished all of the work required under its agreement with Defendant. After the completion of the work, Defendant has failed and continues to fail to compensate Plaintiff for the work performed.\n11. The total value of the work[] performed by Plaintiff is $141,145.00.\n12. Despite repeated demands, Defendant has refused and continues to refuse to pay the amounts due Plaintiff.\n13. On or about October 1, 2007, Plaintiff filed a Claim of Lien (File No. 07 M 3490) with the Clerk of Court of Guilford County to secure its claim for the value of the work performed on the Property ($141,145.00) under N.C.G.S. \u00a744A-7 et seq.\n14. After the filing of the Claim of Lien, Defendant purchased the Property at the foreclosure sale that it had initiated pursuant to the provisions of the Deed of Trust.\nPlaintiff brought causes of action for breach of contract, quantum meruit and quantum valebant, and unfair and deceptive trade practices.\nOn 20 August 2008, defendant answered plaintiff\u2019s complaint alleging (1) there was no contract or (2) meeting of the minds between the parties, (3) the statute of frauds bars plaintiff\u2019s claims, (4) plaintiff had not provided anything of value to defendant, (5) various denials of plaintiff\u2019s allegations, (6) the claim of lien does not provide a sufficient description, and (7) plaintiff failed to enforce its claim of lien within 180 days. On 11 December 2008, defendant filed a motion to amend its answer because (8) plaintiff \u201cis not a licensed general contractor^]\u201d On 8 January 2009, defendant\u2019s motion to amend its answer was allowed.\nOn 12 January 2009, defendant filed a motion for summary judgment. On 4 February 2009, defendant filed an amended motion for summary judgment, arguing defenses (1), (4), and (8) of its answer. On 13 February 2009, plaintiff voluntarily dismissed its claim for unfair and deceptive trade practices. On 4 March 2009, the trial court granted defendant\u2019s motion for summary judgment and dismissed plaintiff\u2019s complaint with prejudice because\n(a) Plaintiff has failed to show the essential elements of a contract between the parties, including definiteness and agreement by the parties to the essential terms of the alleged contract, and (b) Plaintiff has failed to show that Defendant, which did not own the subject property at the time when Plaintiff says it performed work on the property, received any benefit from Plaintiff and Plaintiff also has failed to show the reasonable value of any alleged benefit to Defendant[.]\nThe trial court went on to note that it was not granting summary judgment as to defense (8), but only as to (1) and (4). Therefore, the trial court granted summary judgment because it found (1) there was no contract between plaintiff and defendant and that (4) defendant did not receive a benefit and plaintiff failed to show the value of the alleged benefit. Plaintiff and defendant appeal.\nII. Defendant\u2019s Appeal\nDefendant argues that because plaintiff was not a licensed general contractor pursuant to N.C. Gen. Stat. \u00a7 87-1, plaintiff cannot recover any damages for the work performed. We agree.\nN.C. Gen. Stat. \u00a7 87-1 provides in pertinent part:\nFor the purpose of this Article any person or firm or corporation who for a fixed price, commission, fee, or wage, undertakes to bid upon or to construct or who undertakes to superintend or manage, on his own behalf or for any person, firm, or corporation that is not licensed as a general contractor pursuant to this Article, the construction of any building, highway, public utilities, grading or any improvement or structure where the cost of the undertaking is thirty thousand dollars ($30,000) or more, or undertakes to erect a North Carolina labeled manufactured modular building meeting the North Carolina State Building Code, shall be deemed to be a \u2018general contractor\u2019 engaged in the business of general contracting in the State of North Carolina.\nN.C. Gen. Stat. \u00a7 87-1 (2007). \u201c[A]n unlicensed contractor may not recover on a contract or in quantum meruit.\u201d Reliable Properties, Inc. v. McAllister, 77 N.C. App. 783, 785, 336 S.E.2d 108, 110 (1985) (citations omitted), disc. review denied, 316 N.C. 379, 342 S.E.2d 897 (1986).\nPlaintiff contends \u201cthat factual issues existed as to whether Plaintiff\u2019s undertaking came with[in] the provisions of N.C. Gen. Stat. \u00a7 87-1.\u201d Plaintiff argues that the work it performed did not fall under N.C. Gen. Stat. \u00a7 87-1. Specifically as to \u201cgrading\u201d as used in N.C. Gen. Stat. \u00a7 87-1, plaintiff claims\n[t]he work performed by Plaintiff in the case at bar is not \u2018grading\u2019 because it was not performed as part of building and construction, but was performed to stabilize a temporary and poorly placed pile of dirt, to limit and reduce erosion problems caused by the pile of dirt and later to remove the pile of dirt from the property.\nPlaintiff directs our attention to Spivey and Self v. Highview Farms, 110 N.C. App. 719, 431 S.E.2d 535, disc. review denied, 334 N.C. 623, 435 S.E.2d 342 (1993).\nIn Spivey and Self, the plaintiff and defendants had a contract for the plaintiff to construct a golf course on land owned by defendants. See id. at 722, 431 S.E.2d at 536. The plaintiff began work on the golf course but later left the job and filed a complaint against the defendants, alleging that the defendants had failed to pay in a timely manner under the contract and seeking $226,000 in damages. See id. The defendants brought a counterclaim against the plaintiff, seeking damages in the amount of $340,000 \u201calleging that [the] plaintiff\u2019s failure to continue work had prevented it from completing the course prior to the 1991 growing season.\u201d Id. at 723, 431 S.E.2d at 537. During trial, the defendants\u2019 motion for directed verdict, which was partly based upon the defendants\u2019 contention that the \u201cplaintiff was not entitled to recover because it was not a licensed general contractor^]\u201d was denied by the trial court. Id. On appeal, the defendants argued \u201cthat they were entitled to a directed verdict on plaintiff\u2019s claims on the ground that plaintiff did not have a license as required by N.C.G.S. \u00a7 87-1 and N.C.G.S. \u00a7 87-10, and was thus precluded from recovery.\u201d Id. at 725, 431 S.E.2d at 538. This Court stated that\n[i]n C.C. Walker Grading & Hauling, Inc. v. S.R.F. Management Corp., our Supreme Court held that if \u201cgrading\u201d is an integral part of work properly termed \u201cbuilding and construction,\u201d a license is required to perform the grading work. Assuming, therefore, without deciding, that construction of a golf course is \u201cbuilding and construction\u201d as contemplated by Walker, because the grading was an integral part of the golf course construction plaintiff was required to have a general contractor\u2019s license if the cost of the grading work was $45,000.00 [now $30,000.00] or more.\nIn this case, there is no evidence as to what portion of the $1,100,000.00 contract was for the grading of the project, and to assign any value would require raw speculation. Because the record does not reflect that the grading had a cost of at least $45,000.00, the trial court correctly determined that plaintiff did not violate N.C.G.S. \u00a7 87-1 and was not therefore precluded from suing defendants.\nId. at 726, 431 S.E.2d at 539 (citations, quotation marks, and ellipses omitted). \u201cGrading,\u201d as used in N.C. Gen. Stat. \u00a7 87-1, \u201cconnotes an activity which is a part of, or preparatory for, work properly termed \u2018building and construction. \u2019 \u201d Walker Grading & Hauling v. S.R.F. Mgmt. Corp., 311 N.C. 170, 180, 316 S.E.2d 298, 304 (1984) (emphasis added). The definition of \u201cgrading\u201d in this context is \u201cto level off to a smooth horizontal or sloping surface[.]\u201d Merriam-Webster\u2019s Collegiate Dictionary 542 (11th ed. 2005).\nPlaintiff contends that the work it performed was not \u201cgrading\u201d within the meaning of N.C. Gen. Stat. \u00a7 87-1 because it was done only to stabilize the site, prevent erosion, and remove the dirt. Plaintiff\u2019s manager, Frank R. Lato, filed an affidavit denying that plaintiff\u2019s work should be considered \u201cgrading\u201d because the land was not being graded to a particular elevation as dictated by construction plans. However, plaintiff\u2019s verified complaint alleged that \u201cDefendant contracted with Plaintiff in July 2007 to provide and furnish various labor and services to ... prepare the Property as a site for residential construction.\" (Emphasis added.) Although Mr. Lato denied that plaintiff performed \u201cgrading,\u201d he also claimed that \u201c[t]he mound of dirt had to be removed before buildings could be constructed where the mound was located\u201d and that \u201c[t]he mound of dirt first had to be stabilized and then the dirt removed for the Property to be developed.\u201d (Emphasis added.) Also, Mr. Lato\u2019s affidavit describes removal of dirt to prepare land for building construction. As noted above, \u201cgrading,\u201d as used in N.C. Gen. Stat. \u00a7 87-1, \u201cconnotes an activity which is a part of, or preparatory for, work properly termed \u2018building and construction.'\u2019 \u201d Walker Grading & Hauling at 180, 316 S.E.2d at 304 (emphasis added). Mr. Lato\u2019s affidavit clearly describes work which can only be denominated as \u201cgrading,\u201d which was done to prepare the land for construction of buildings. See id. at 180, 316 S.E.2d at 304. Grading was clearly an integral part of the work performed as plaintiff asserts on at least three occasions that the purpose of stabilizing and removing the dirt mound was in order to prepare the site for construction. See Spivey and Self at 726, 431 S.E.2d at 539.\nPlaintiff also argues that even if we conclude that the work it performed was \u201cgrading\u201d pursuant to N.C. Gen. Stat. \u00a7 87-1 and we conclude that \u201cgrading\u201d was an integral part of its work, \u201cDefendant has offered no evidence to suggest that the cost of any grading performed by Plaintiff was $30,000 or more.\u201d However, Mr. Lato\u2019s affidavit also establishes that over $30,000.00 plaintiff claimed as damages for the project was for grading work. Mr. Lato avers that plaintiff spent $43,132.00 to rent an excavator. The affidavit states that \u201c[i]n order for plaintiff to stabilize the mound and remove the dirt, plaintiff had to lease an excavator.\u201d The purpose of stabilizing and removing was because \u201c[t]he mound of dirt first had to be stabilized and then the dirt removed for the Property to be developed.\u201d Thus, Mr. Lato admitted that at least $43,132.00 was attributable to grading work which was preparatory for construction, as this was the cost of rental of an excavator. Therefore, plaintiff\u2019s complaint and affidavits indicate that plaintiff performed \u201cgrading\u201d pursuant to N.C. Gen. Stat. \u00a7 87-1; grading was an integral part of plaintiff\u2019s work; and the grading cost more than $30,000.00. Thus, plaintiff has performed the work of a general contractor for which it must be licensed in order to recover damages for breach of contract or in quantum meruit. See N.C. Gen. Stat. \u00a7 87-1; Reliable Properties at 785, 336 S.E.2d at 110. Plaintiff has admitted through Mr. Lato\u2019s deposition that it did not have a general contractor\u2019s license at the time it performed its work, so plaintiff cannot recover in quantum meruit. See N.C. Gen. Stat. \u00a7 87-1; Reliable Properties at 785, 336 S.E.2d at 110.\nIII. Plaintiff\u2019s Appeal\nPlaintiff\u2019s issues on appeal are based upon the trial court\u2019s order which concluded that it could not recover in quantum meruit. However, we need not address plaintiff\u2019s issues as we have already concluded that because plaintiff performed the work of a general contractor without a license, it may not recover in quantum meruit. Thus, even if we were to agree with plaintiff that the trial court erred in concluding that (1) defendant did not receive a benefit and (2) plaintiff failed to offer evidence of the reasonable value of its work, plaintiff still could not recover for the reasons stated above, and thus we affirm the trial court order. See State v. Austin, 320 N.C. 276, 290, 357 S.E.2d 641, 650 (1987) (\u201cA correct decision of a lower court will not be disturbed on review simply because an insufficient or superfluous reason is assigned. The question for review is whether the ruling of the trial court was correct and not whether the reason given therefor is sound or tenable.\u201d (citation omitted)), cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987). Thus, plaintiff\u2019s arguments are without merit.\nIV. Conclusion\nAs we have concluded that plaintiff performed the work of a general contractor without a license, and plaintiff cannot recover in quantum meruit, we affirm the decision of the trial court.\nAFFIRMED.\nJudges STEPHENS and BEASLEY concur.\n. Plaintiff abandoned its arguments regarding breach of contract on appeal.",
        "type": "majority",
        "author": "STROUD, Judge."
      }
    ],
    "attorneys": [
      "Richard M. Greene, for plaintiff-appellant.",
      "Brooks Pierce McLendon Humphrey & Leonard, LLP, by Reid L. Phillips, for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "LATO HOLDINGS, LLC, Plaintiff v. BANK OF NORTH CAROLINA, Defendant\nNo. COA09-731\n(Filed 6 April 2010)\nConstruction Claims \u2014 breach of contract \u2014 quantum meruit\u2014 unlicensed general contractor\nThe trial court did not err in a breach of contract and quantum meruit case by granting defendant\u2019s motion for summary judgment and dismissing plaintiff\u2019s complaint with prejudice. Plaintiff cannot recover any damages for the \u201cgrading\u201d work performed because it was not a licensed general contractor under N.C.G.S. \u00a7 87-1.\nAppeal by plaintiff and defendant from summary judgment order entered 4 March 2009 by Judge A. Moses Massey in Superior Court, Guilford County. Heard in the Court of Appeals 5 November 2009.\nRichard M. Greene, for plaintiff-appellant.\nBrooks Pierce McLendon Humphrey & Leonard, LLP, by Reid L. Phillips, for defendant-appellee."
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  "file_name": "0332-01",
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  "last_page_order": 367
}
