              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                    No. COA19-35

                              Filed: 19 November 2019

Watauga County, No. 17 CVS 285

DAVIS & TAFT ARCHITECTURE, P.A., Plaintiff,

             v.

DDR-SHADOWLINE, LLC, DEEDS REALTY SERVICES, LLC, and SHADOWLINE
PARTNERS, LLC, Defendants.


      Appeal by defendant Shadowline Partners, LLC from judgment entered 12

July 2018 by Judge J. Thomas Davis in Watauga County Superior Court. Cross-

appeal by plaintiff from order entered 11 December 2017 by Judge R. Gregory Horne

in Watauga County Superior Court. Heard in the Court of Appeals 22 May 2019.


      Eggers, Eggers, Eggers & Eggers, by Stacy C. Eggers, IV, and Kimberly M.
      Eggers, for plaintiff-appellee/cross-appellant.

      Forrest Firm, P.C., by Patrick S. Lineberry, and Clement Law Office, by D. Dale
      Howard, for defendant-appellant/cross-appellee Shadowline Partners, LLC.


      ZACHARY, Judge.


      This case arises out of a contract dispute between Shadowline Partners, LLC

and Deeds Realty Services, LLC. Shadowline Partners, LLC appeals from a summary

judgment order finding it liable for breach of contract and in quantum meruit. Davis

& Taft Architecture, P.A., a third-party beneficiary to the contract, cross-appeals from

an order dismissing its claim for enforcement of a claim of lien. After review, we

affirm both orders.
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                                 Opinion of the Court



                                   Background

      Shadowline Partners, LLC (“Shadowline”) owned and intended to sell real

property that was to be developed into a student-housing complex. Two companies

expressed an interest in the property: Deeds Realty Services, LLC (“Deeds Realty”)

and DDR-Shadowline, LLC (“DDR”). On 1 August 2016, before Shadowline entered

into any agreement to sell its property, DDR contracted with Brent Davis

Architecture, Inc. to perform architectural work on the planned student-housing

complex. The contract was subsequently assigned to Davis & Taft Architecture, P.A.

(“Davis & Taft”). At the end of the month, Davis & Taft submitted a fee proposal and

payment schedule to DDR. Phases I and II of the proposal, respectively, encompassed

the housing complex’s “schematic design” and “design development.”         The first

payment for Phase I was made by DDR on 31 August 2016.

      On 30 September 2016, Shadowline entered into an Agreement for Purchase

and Sale of Real Property (“the Agreement”) with Deeds Realty. Davis & Taft agreed

to perform architectural work pursuant to the Agreement between Shadowline and

Deeds Realty, which explicitly named Davis & Taft under the section titled “Third

Party Payments”:

            Davis & Taft Architecture. TWO HUNDRED THIRTY
            THOUSAND AND NO/100 DOLLARS ($230,000.00) shall
            be payable to Davis & Taft Architecture (“Davis & Taft”) by
            [Shadowline] on a payment schedule to be established by
            Davis & Taft. As of the date of execution of this Agreement,
            an invoice from Davis & Taft in the amount of $74,500.00


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             has been received by [Shadowline] and shall be paid by
             [Shadowline] within five (5) business days of execution of
             this Agreement and is included in the above-stated
             $230,000.00 obligation of [Shadowline]. [Shadowline] will
             expect another invoice for the remaining balance from
             Davis & Taft and shall pay said invoice (up to its obligation
             stated herein) received from Davis & Taft as and when due
             pursuant to said invoices. [Shadowline] agrees to pay the
             remaining balance owed into the [trust account of a Law
             Office] within five (5) business days of execution of this
             Agreement and authorizes [the Law Office] to pay future
             Davis & Taft invoice(s) up to the balance held in Trust. In
             the event of early termination of this Agreement for any
             reason, [Shadowline] shall be entitled to all plans,
             specifications, and any and all work product produced by
             Davis & Taft. [Deeds Realty] shall pay Davis & Taft all
             amounts owed in excess of [Shadowline’s] obligation stated
             herein.

      After the Agreement was signed, Deeds Realty assigned its interest in the

contract to DDR.     Because DDR failed to close on the property, Shadowline

terminated the Agreement on 7 December 2016.             At the time of termination,

Shadowline still owed Davis & Taft $80,000 pursuant to the terms of the Agreement.

Davis & Taft filed an $80,000 claim of lien against Shadowline, the property’s owner.

      On 7 June 2017, Davis & Taft filed a complaint in Watauga County Superior

Court against DDR, Shadowline, and Deeds Realty alleging claims: (1) for breach of

contract, (2) in quantum meruit, and (3) for enforcement of the claim of lien. On 5

October 2017, Shadowline filed a motion to dismiss all claims pursuant to Rule

12(b)(6) of the North Carolina Rules of Civil Procedure. On 11 December 2017, the




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motion was heard before the Honorable R. Gregory Horne, who dismissed Davis &

Taft’s claim for enforcement of the claim of lien and discharged the lien.

        On 25 June 2018, Davis & Taft moved for summary judgment on its remaining

claims. The motion came on for hearing before the Honorable J. Thomas Davis, who

(1) granted Davis & Taft’s motion for summary judgment in its entirety, and (2)

dismissed all claims against Deeds Realty. Shadowline timely filed notice of appeal

from the summary judgment order. Davis & Taft filed notice of cross-appeal from the

order dismissing and discharging its claim of lien.1

                                            Discussion

        A.      Claim of Lien

        Davis & Taft argues that the trial court erred in dismissing its claim for

enforcement of the claim of lien and by discharging the lien. We disagree.

        A motion to dismiss “tests the legal sufficiency of the complaint.” Parker v.

Town of Erwin, 243 N.C. App. 84, 110, 776 S.E.2d 710, 729 (2015). Such a motion

requires that the trial court decide, as a matter of law, whether the pleadings “state

a claim upon which relief can be granted.” N.C. Gen. Stat. § 1A-1, Rule 12(b)(6)

(2017). “Dismissal is proper (1) when the complaint on its face reveals that no law

supports [the] plaintiff’s claim; (2) when the complaint reveals on its face that some

fact essential to [the] plaintiff’s claim is missing; and (3) when some fact disclosed in


1Davis & Taft did not timely file its notice of appeal from the order dismissing the claim of lien;
however, on 17 May 2019, this Court allowed its petition for writ of certiorari. N.C.R. App. P. 21(a)(1).

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the complaint defeats the plaintiff’s claim.”      Signature Dev., L.L.C. v. Sandler

Commercial at Union, L.L.C., 207 N.C. App. 576, 582, 701 S.E.2d 300, 305 (2010)

(quotation marks omitted), disc. review denied, 365 N.C. 211, 710 S.E.2d 33 (2011).

On appeal, this Court reviews a trial court’s ruling on a 12(b)(6) motion de novo. Id.

at 582, 701 S.E.2d at 306.

      The North Carolina General Assembly has enacted legislation to protect the

interests of contractors, laborers, and materialmen:

             Any person who performs or furnishes labor or professional
             design or surveying services or furnishes materials or
             furnishes rental equipment pursuant to a contract, either
             express or implied, with the owner of real property for the
             making of an improvement thereon shall . . . have a right to
             file a claim of lien on real property on the real property to
             secure payment of all debts owing for labor done or
             professional design or surveying services or material
             furnished or equipment rented pursuant to the contract.

N.C. Gen. Stat. § 44A-8 (2017) (emphasis added); see also O & M Indus. v. Smith

Eng’g Co., 360 N.C. 263, 268, 624 S.E.2d 345, 348 (2006) (“The materialman’s lien

statute is remedial in that it seeks to protect the interests of those who supply labor

and materials that improve the value of the owner’s property.”).

      The instant dispute concerns the meaning of the word “owner” under N.C. Gen.

Stat. § 44-8, and whether Shadowline meets that definition. Shadowline argues that

Davis & Taft did not contract with an “owner” of property “according to the

straightforward language” of N.C. Gen. Stat. § 44A-8. We agree.



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                                   Opinion of the Court



      Chapter 44A defines “owner” as “[a] person who has an interest in the real

property improved and for whom an improvement is made and who ordered the

improvement to be made.” N.C. Gen. Stat. § 44A-7(6) (2017). An “improvement” is

defined as “[a]ll or any part of any building, structure, erection, alteration,

demolition, excavation, clearing, grading, filling, or landscaping, including trees and

shrubbery, driveways, and private roadways, on real property.”          Id. § 44A-7(4).

Further, “improve” means:

             To build, effect, alter, repair, or demolish any improvement
             upon, connected with, or on or beneath the surface of any
             real property, or to excavate, clear, grade, fill or landscape
             any real property, or to construct driveways and private
             roadways, or to furnish materials, including trees and
             shrubbery, for any of such purposes, or to perform any
             labor upon such improvements, and shall also mean and
             include any design or other professional or skilled services
             furnished by architects, engineers, land surveyors and
             landscape architects registered under Chapter 83A, 89A or
             89C of the General Statutes, and rental of equipment
             directly utilized on the real property in making the
             improvement.

Id. § 44A-7(3). These definitions are indicative of the legislature’s intent in enacting

§ 44A-8. See In re Proposed Assessments v. Jefferson-Pilot Life Ins. Co., 161 N.C. App.

558, 560, 589 S.E.2d 179, 181 (2003).

      In its complaint, Davis & Taft alleged that it “first furnished work, material,

labor, and services to the property on October 19, 2016, and last furnished work,

material, labor, and services to the property on February 28, 2017.” However, Davis



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& Taft stated that the labor furnished consisted of “[a]rchitectural design and

schematic plans in accordance with the agreement for purchase and sale of real

property.” There is no evidence of the performance of any work directly affecting the

real property during that time, a “fact essential to [Davis & Taft’s] claim.” Signature

Dev., L.L.C., 207 N.C. App. at 582, 701 S.E.2d at 305.          Without work directly

impacting the real property, the real property in question has not been “improved” as

defined by N.C. Gen. Stat. § 44A-8. See S.E. Steel Erectors, Inc. v. Inco, Inc., 108 N.C.

App. 429, 434, 424 S.E.2d 433, 437 (1993) (“It is apparent that ‘labor’ and ‘improve’

contemplate actual work done by the person claiming a lien, whether that person be

a manual laborer, supervisor, or skilled professional, which directly impacted on the

real property in question.” (emphasis added)).

      In short, Shadowline does not qualify as an “owner” because no improvement

was made to its real property, and Davis & Taft therefore did not have a contract

with any owner pursuant to § 44A-8. Accordingly, the trial court correctly dismissed

Davis & Taft’s claim for enforcement of the claim of lien.

      B.     Third-Party Beneficiary

      Shadowline next argues that the trial court erred in granting summary

judgment in Davis & Taft’s favor on its claim for breach of contract because Davis &

Taft was not an intended third-party beneficiary of the contract. We disagree.




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                                   Opinion of the Court



      Summary judgment is appropriate when “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.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2017). The

standard of review for summary judgment is de novo. Shroyer v. Cty. of Mecklenburg,

154 N.C. App. 163, 167, 571 S.E.2d 849, 851 (2002).

      A party is a direct beneficiary of a contract “if the contracting parties intended

to confer a legally enforceable benefit on that person.” Hospira Inc. v. AlphaGary

Corp., 194 N.C. App. 695, 703, 671 S.E.2d 7, 13, disc. review denied, 363 N.C. 581,

682 S.E.2d 210 (2009). By contrast, in order to establish a claim based on the third-

party beneficiary doctrine, a complainant must show: “(1) the existence of a contract

between two other persons; (2) that the contract was valid and enforceable; and (3)

that the contract was entered into for his direct, and not incidental, benefit.” Hoots

v. Pryor, 106 N.C. App. 397, 408, 417 S.E.2d 269, 276 (citation omitted), disc. review

denied, 332 N.C. 345, 421 S.E.2d 148 (1992). Moreover, “[i]t is not enough that the

contract . . . benefits the [third party], if, when the contract was made, the contracting

parties did not intend it to benefit the [third party] directly.” Hospira, 194 N.C. App.

at 703, 671 S.E.2d at 13 (quotation marks omitted); see also Snyder v. Freeman, 300

N.C. 204, 220, 266 S.E.2d 593, 604 (1980) (“[T]he determining factor as to the rights




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of a third-party beneficiary is the intention of the parties who actually made the

contract.”).

       In the case at bar, the record reveals that Davis & Taft was an intended third-

party beneficiary of the Agreement. DDR and Shadowline named Davis & Taft in the

section of the Agreement titled “Third Party Payments,” and provided that $230,000

“shall be payable to Davis & Taft by [Shadowline] on a payment schedule to be

established by Davis & Taft.” The Agreement also provided that “[Shadowline] will

expect another invoice for the remaining balance from Davis & Taft and shall pay

said invoice . . . received from Davis & Taft.”

       Davis & Taft’s specific inclusion, by name, within the “Third Party Payments”

section of the Agreement provides strong evidence that it was an intended third-party

beneficiary to the contract between Shadowline and DDR. See Vogel v. Supply Co.,

277 N.C. 119, 126-27, 177 S.E.2d 273, 278 (1970); 17B C.J.S. Contracts § 848 (2011)

(“A third-party beneficiary who is clearly designated as such is seldom left without a

remedy . . . .” (emphasis added)). Additionally, this intent was effectuated by Davis

& Taft’s performance of architectural services. Shadowline intended to sell—and

DDR intended to purchase—the real property in question for the purpose of

developing and building a student-housing complex, which required architectural

plans and designs. Shadowline’s obligation to pay for the architectural plans drawn

by Davis & Taft thereby furthered the contract’s purpose.



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        Davis & Taft’s direct dealings with the parties to the Agreement are also of

consequence. “[A]ctive and direct dealings” with one of the parties to a contract may

confer third-party beneficiary status upon a plaintiff. Hospira, 194 N.C. App. at 703,

671 S.E.2d at 13. Here, before DDR and Shadowline executed the Agreement, Davis

& Taft agreed to provide architectural services and sent DDR a payment schedule

outlining the payment obligations under the Agreement. Even if Davis & Taft were

not expressly named in the Agreement, Davis & Taft’s involvement with the

contracting parties evidences its status as a third-party beneficiary. See Chem.

Realty Corp. v. Home Fed. Sav. & Loan, 84 N.C. App. 27, 33, 351 S.E.2d 786, 790

(1987).

        In sum, the facts of this case compel the conclusion that the parties to the

Agreement intended to benefit Davis & Taft. See Hospira, 194 N.C. App. at 703, 671

S.E.2d at 13 (noting that courts “must consider the surrounding circumstances as

well as the language of the contract” when determining whether the parties intended

to benefit a third party). Therefore, no issues of material fact exist, and the trial court

properly granted summary judgment in favor of Davis & Taft as to its claim for breach

of contract.2



        2 Because we conclude that Davis & Taft was a third-party beneficiary and that a contract did
exist between the parties, we need not address any appeal relating to Davis & Taft’s claim in quantum
meruit. See Ron Medlin Constr. v. Harris, 364 N.C. 577, 580, 704 S.E.2d 486, 489 (2010) (“Quantum
meruit is not an appropriate remedy when there is an actual agreement between the parties because
an express contract precludes an implied contract with reference to the same matter.” (internal citation
and quotation marks omitted)).

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                                   Opinion of the Court



                                     Conclusion

      Upon review, we conclude that (1) Judge Horne properly dismissed Davis &

Taft’s claim of lien, and (2) Judge Davis correctly determined that there were no

genuine issues of material fact and entered summary judgment in favor of Davis &

Taft. Accordingly, we affirm both of the trial court’s orders.

      AFFIRMED.

      Judges BRYANT and MURPHY concur.




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