DALE THOMAS WINKLER, and DJ‘S HEATING SERVICE v. NORTH CAROLINA STATE BOARD OF PLUMBING, HEATING & FIRE SPRINKLER CONTRACTORS
No. 319PA18
Supreme Court of North Carolina
Filed 5 June 2020
On discretionary review pursuant to
Bailey & Dixon, LLP, by Jeffrey P. Gray, for petitioner-appellants.
Young Moore and Henderson P.A., by Angela Farag Craddock, John N. Fountain, and Reed N. Fountain, for respondent-appellee.
Nichols, Choi & Lee, PLLC, by M. Jackson Nichols, Anna Baird Choi, and Christina D. Cress; and North Carolina Real Estate Commission, by Janet B. Thoren, for the North Carolina Board of Architecture, North Carolina Board of Barber Examiners, North Carolina Real Estate Commission, North Carolina State Board of Chiropractic Examiners, and State Licensing Board for General Contractors, amici curiae.
In this case, the Court is asked to consider whether a trial court may award attorney‘s fees to a prevailing party in a disciplinary action by a licensing board. Because we conclude that
I. Factual and Procedural Background
In April 2013, maintenance staff from the Best Western Hotel in Boone, North Carolina, contacted Dale Thomas Winkler f/k/a DJ‘s Heating Service (Winkler) to examine the hotel‘s pool heater. Winkler held a Heating Group 3 Class II (H-3-II) residential license that qualified him to work on detached residential HVAC units and, as such, he was not licensed to perform the work requested. Upon examining the heater, despite the fact that he was not equipped with the appropriate licensure, Winkler determined that the gas supply had been turned off. He located the fuel supply in the pool equipment room and turned on the gas.
On 16 April 2013, several days after Winkler examined the pool heater, two guests died in Room 225 of the hotel, located above the pool equipment room. The hotel closed the room until it could be checked for gas leaks. At the time, the cause of death for both guests was undetermined.
The hotel contacted Winkler, asking him to examine the ventilation system for the pool heater and the fireplace in Room 225. During his visit, Winkler performed a soap test to check for gas leaks and determined there were no leaks. Without checking for carbon monoxide, Winkler informed the hotel that the ventilation system appeared to be working.
Following Winkler‘s inspection, the hotel reopened Room 225 in late May 2013. On 8 June 2013, one guest died and another guest was injured while staying in Room 225. Shortly after the third death, toxicology reports from the first two guests were performed and indicated that both individuals had a lethal concentration of carbon monoxide in their blood. Toxicology reports later performed on the third and fourth guests also indicated excessive levels of carbon monoxide in their blood.
Following the issuance of the toxicology reports, the North Carolina State Board of Plumbing, Heating, & Fire Sprinkler Contractors (the Board) performed its own investigation and determined that carbon monoxide from the ventilation system for the pool heater had entered Room 225 through openings near the room‘s fireplace and HVAC unit. After he admitted to the Board that he had performed work beyond his license qualification, the Board suspended Winkler‘s license for one year and ordered him to complete multiple courses.
Winkler appealed the Board‘s decision to the Superior Court, Watauga County. The trial court entered an order on 22 June 2015 affirming the Board‘s decision. On appeal to the North Carolina Court of Appeals, Winkler challenged the Board‘s jurisdiction to discipline him for working on the pool heater without proper licensure. On 20 September 2016, the Court of Appeals held that
On 24 October 2016, Winkler filed a motion for attorney‘s fees and costs in Superior Court, Watauga County, pursuant to
The Court of Appeals ultimately held that the trial court erred in awarding Winkler attorney‘s fees pursuant to
II. Discussion
In North Carolina, a trial court may award attorney‘s fees only as authorized by statute. City of Charlotte v. McNeely, 281 N.C. 684, 691, 190 S.E.2d 179, 185 (1972). Section 6-19.1 of the North Carolina General Statutes governs a trial court‘s ability to award attorney‘s fees. The relevant portion of the statute provides the following:
In any civil action, other than an adjudication for the purpose of establishing or fixing a rate, or a disciplinary action by a licensing board, brought by the State or brought by a party who is contesting State action pursuant to G.S. 150B-43 or any other appropriate provisions of law, unless the prevailing party is the State, the court may, in its discretion, allow the prevailing party to recover reasonable attorney‘s fees, including attorney‘s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency if:
- The court finds that the agency acted without substantial justification in pressing its claim against the party; and
- The court finds that there are no special circumstances that would make the award of attorney‘s fees unjust.
The Board contends that the phrase “or a disciplinary action by a licensing board” was intended to be an exclusion to the statute; Winkler, on the other hand, argues that rate-fixing cases are the only exclusion to the statute. Thus, this case presents an issue of statutory interpretation, which we review de novo. Applewood Props., LLC v. New S. Props., LLC, 366 N.C. 518, 522, 742 S.E.2d 776, 779 (2013).
1. Statutory Construction of N.C.G.S. § 6-19.1
This Court has long recognized that, “[w]hen the language of a statute is clear and without ambiguity, it is the duty of this Court to give effect to the plain meaning of the statute, and judicial construction of legislative intent is not required.” N.C. Dep‘t of Corr. v. N.C. Med. Bd., 363 N.C. 189, 201, 675 S.E.2d 641, 649 (2009) (quoting Diaz v. Div. of Soc. Servs., 360 N.C. 384, 387, 628 S.E.2d 1, 3 (2006)). When the statutory language is ambiguous, however, the Court will ascertain legislative intent. Id.
Furthermore, courts should construe the statute so that “none of its provisions shall be rendered useless or redundant.” Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981). Based on the Court‘s review of the words and punctuation used in
The disputed language of
Ordinarily, the placement and use of punctuation aids in the process of statutory interpretation. Stephens Co. v. Lisk, 240 N.C. 289, 293–94, 82 S.E.2d 99, 102 (1954) (citing State v. Bell, 184 N.C. 701, 115 S.E. 190 (1922)). But while punctuation “is intended to and does assist in making clear and plain the meaning of all things else in the English language,” this Court has also recognized that punctuation “is not an infallible standard of construction,” Bell, 184 N.C. at 706, 115 S.E. at 192. The statute at issue here demonstrates the fallibility of reliance on grammatical structure alone. Here each of the proposed constructions is marred by a
It is undisputed that the introductory phrase of
The second interpretation—that disciplinary actions are a second subcategory of civil actions excepted from the broad category of civil actions and therefore are not eligible for an award of attorney‘s fees—is the interpretation adopted by the Court of Appeals.
As the Court of Appeals pointed out, this construction has the benefit of parallel structure. See Winkler II, 261 N.C. App. at 112, 819 S.E.2d at 109 (quoting Falin v. Roberts Co. Field Servs., 245 N.C. App. 144, 150, 782 S.E.2d 75, 79 (2016)). We agree with the Court of Appeals that, generally, “[e]very element of a parallel series must be a functional match of the others (word, phrase, clause, sentence) and serve the same grammatical function in the sentence (e.g., noun, verb, adjective, adverb). When linked items are not like items, the syntax of the sentence breaks down. . . .” Falin, 245 N.C. App. at 150, 782 S.E.2d at 79) (quoting The Chicago Manual of Style § 5.212 (16th ed. 2010)). In subsection 6-19.1(a) an adjective, “any,” modifies a phrase, “civil action,” while singular indefinite articles, “an” and “a,” modify the phrases “adjudication for the purpose of establishing or fixing a rate” and “disciplinary action by a licensing board.” This parallel use of singular indefinite articles ties together the phrases related to establishing and fixing a rate and disciplinary action by a licensing board and it differentiates those phrases from the phrase “civil action.” This common grammatical form implies a common function: to set out exceptions to the general provision that the trial court may award attorney‘s fees in “any civil action.”
This interpretation, however, fails to account for the excessive comma use throughout the relevant portion of the statute. The following disputed portion of
The fact that the rate-fixing clause is set off by a pair of commas arguably might indicate that the clause is intended as an interrupting modifier, altering the meaning of the noun phrase immediately preceding it. Generally, however, a pair of commas setting off a descriptive phrase denotes a nonrestrictive clause—one that describes, but is not necessary to preserve the meaning of the sentence. See The Chicago Manual of Style § 6.29 (17th ed. 2017); Bryan A. Garner, The Redbook: A Manual on Legal Style § 1.6 (4th ed. 2018). Here, the modifying phrase—whatever it includes—is necessary to the sentence because without it, “any civil action” could be eligible for an award of attorney‘s fees without exception. It is clear that at least one—
Because no interpretation of the statute is free from grammatical error, no plain meaning emerges from the language of
Chapter 1 of the North Carolina General Statutes, which governs civil procedure, defines a civil “action” as “an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment or prevention of a public offense.”
Indeed, a disciplinary action does not become a civil action until either party petitions for judicial review of the decision of the board or commission, and the matter becomes a contested case before a judge. See Empire Power Co. v. N.C. Dep‘t of Env‘t, Health & Nat. Res., 337 N.C. 569, 594, 447 S.E.2d 768, 783 (1994) (noting that judicial review “is generally available only to aggrieved persons who have exhausted all administrative remedies made available by statute or agency rule” (citing
Construing the statute to allow the trial court to award attorney‘s fees for disciplinary actions by a licensing board is also consistent with the remainder of
The statute also provides that “the court may, in its discretion, allow the prevailing party to recover reasonable attorney‘s fees, including attorney‘s fees applicable to the administrative review portion of the case, in contested cases arising under Article 3 of Chapter 150B, to be taxed as court costs against the appropriate agency.” Appellee argued that because disciplinary actions by a licensing board are considered a “contested case” under Chapter 150B, it makes no sense to include “or a disciplinary action by a licensing board” in the statute unless it was intended to be an exclusion. This contention is incorrect.
Accordingly, we hold that the legislature intended to allow trial courts to award attorney‘s fees in a disciplinary action by a licensing board.
2. Substantial Justification and Special Circumstances
Section 6-19.1 provides that a judge may award attorney‘s fees in eligible matters only upon a finding that the agency acted without substantial justification and that there are no special circumstances that would make the award of attorney‘s fees unjust. Because substantial justification existed to support the Board‘s claim in this case, we conclude that the trial court abused its discretion in awarding attorney‘s fees for both the administrative and judicial review proceedings.
We review a trial court‘s decision to award attorney‘s fees under
The purpose of
Throughout the proceedings in the instant case, the Board has contended that the deaths and injuries at the center of this controversy are “the precise kind of harm the legislature intended to bring under the
Specifically,
[R]evoke or suspend the license of or order the reprimand or probation of any plumbing, heating, or fire sprinkler contractor, or any combination thereof . . . who fails to comply with any provision or requirement of this Article [2], or the rules adopted by the Board, or for gross negligence, incompetency, or misconduct, in the practice of or in carrying on the business of a plumbing, heating, or fire sprinkler contractor, or any combination thereof, as defined in this Article.
Subsection 87-21(a)(5)1 of the North Carolina General Statutes, at the time of the events, defined “engaged in the business” as the act of or offer to perform installations, alterations, or restorations.
According to the Board‘s unchallenged findings of fact, Winkler was asked to “examine the pool heater and get it running.” Winkler then examined the heater and, “[a]long with the Best Western [H]otel maintenance staff,” turned on the pool heater. Winkler‘s services were again requested following the death of two occupants, and he concluded that there was no gas leak, despite obvious signs of a leak. As a result of the gas leak, three people died and one person was seriously injured.
The Board argued that Winkler‘s actions “put [the pool heating system] back into use.” That is, he restored the system. The Court of Appeals ultimately concluded that Winkler‘s actions in turning on the pool heating system did not rise to the level of a restoration. That decision is not before this Court, and we express no opinion on it. Even assuming that the Court of Appeals’ decision in Winkler I was correct, we cannot agree, however, that the Board‘s arguments were irrational or illegitimate in light of the facts. Despite failing to prevail on the merits of its claim, the Board was substantially justified in contending that Winkler engaged in the type of conduct the Board was authorized to discipline.2
For the foregoing reasons, we hold that the trial court erred in awarding Winkler attorney‘s fees, pursuant to
MODIFIED AND AFFIRMED.