RestorePro Reconstruction, Inc. v. Simpson

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal

authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule

30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA24-923

Filed 15 April 2026

Mecklenburg County, No. 22CVS011429-590

RESTOREPRO RECONSTRUCTION, INC., Plaintiff,

v.

GERALDINE F. SIMPSON, Defendant and Counterclaim Plaintiff,

v.

RESTOREPRO RECONSTRUCTION, INC. and STATE FARM FIRE AND

CASUALTY COMPANY, Counterclaim Defendants.

Appeal by Defendant and cross-appeal by Counterclaim Defendant State Farm

Fire and Casualty Company from order entered 22 May 2024 by Judge George C. Bell

in Mecklenburg County Superior Court. Heard in the Court of Appeals 8 April 2025.

Butler Snow, LLP, by Scott Lewis and Shelley W. Coleman, for the

counterclaim-defendant-appellee and cross-appellant State Farm Fire and

Casualty Company.

Capua Law Firm, P.A., by Natalia L. Talbot and Paul A. Capua, for the

defendant-appellant and defendant-cross-appellee.

Jordan, Price, Wall, Gray, Jones & Carlton, PLLC, by Brian S. Edlin and Kyle

A. Lewis, for the plaintiff-appellee and counterclaim-defendant-appellee

Restorepro Reconstruction, Inc.

STADING, Judge.

This appeal arises out of a collection action initiated by RestorePro

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

Reconstruction, Inc. (“RestorePro”) against Geraldine F. Simpson (“Defendant”).

RestorePro filed this action after rendering emergency services to Defendant without

payment. Defendant answered the complaint; joined its insurer, State Farm Fire and

Casualty Company (“State Farm”), as a party and asserted several counterclaims.

Subsequently, RestorePro and State Farm moved for summary judgment on several

claims and counterclaims at the close of discovery. Defendant also moved the trial

court to compel discovery from State Farm under N.C. Gen. Stat. § 1A-1, Rule 37

(2025). The trial court entered an interlocutory order on 22 May 2024, ruling on all

motions. Defendant appeals and State Farm cross-appeals from the trial court’s

order. Having conducted a meticulous review, we affirm the trial court’s order in

part, vacate in part, and reverse in part.

I. Factual and Procedural Background

The record tends to show that on 18 November 2021, a large section of the

ceiling in Defendant’s home suddenly collapsed, leaving debris scattered throughout

the living room. Shortly thereafter, Defendant reported the damage to her

homeowner’s insurance provider, State Farm. The State Farm agent who spoke with

Defendant referred her to RestorePro, an emergency services provider.

On 19 November 2021, Leslie Turner, an estimator and project manager with

RestorePro, conducted a walkthrough of Defendant’s home. Upon arrival, Ms. Turner

observed the age of the home, “what appeared to be asbestos type ceiling tile

throughout,” and debris across the living room. Ms. Turner told Defendant “that

-2-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

[RestorePro] needed to test for asbestos before anything could be touched.” She then

gave Defendant a work authorization form (the “Contract”) to sign, explaining the

information would be shared with State Farm. She added, if the asbestos testing

results were negative, RestorePro “could come and clean up the mess that fell.”

Defendant’s daughter, Dorenthia Collins, who was physically present during the

walkthrough, noted Ms. Turner was “adamant” about conducting an asbestos test

and getting Defendant “out of the house because it wasn’t safe.” Ms. Collins also

recalled Ms. Turner presented Defendant with the Contract, which Ms. Collins,

although not having read the contract, believed Defendant was required to sign for

RestorePro to proceed with the asbestos testing. Ms. Turner stated she gave

Defendant and Ms. Collins an opportunity to read the Contract, which provided:

This authorization is only for emergency services. This

authorization does not extend to any work beyond

emergency services, unless authorized and agreed in

writing, and does not extend to any upgrades to the

property desired by Property Owner, except as authorized

and agreed to in writing. In the event the Property Owner

engages RestorePro to do restoration work, Property

Owner and RestorePro will enter into a separate contract

which will supersede and replace this contract, provided

however, that RestorePro payment rights hereunder will

survive to the extent necessary for RestorePro to be

compensated for its emergency services.

Property Owner acknowledges that while RestorePro

agrees to use its best judgment and efforts to stabilize and

protect the property, RestorePro cannot and does not

guarantee that the property or items can be restored to

their condition prior to sustaining damage. Property

Owner acknowledges that it is not possible in all cases to

-3-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

restore property or items damaged by a traumatic

occurrence to their condition before damage. In the event

that the property or items described above cannot be

restored to their original condition, Property Owner waives

and releases any claims against RestorePro and its officers,

directors and employees, and will instead pursue a claim

for additional damage with Property Owner’s insurance

company. Property Owner, on behalf of its insurer waives

all claims of subrogation insurer may have against

RestorePro.

Property Owner further understands and acknowledges

that RestorePro has not been retained to remediate or

restore property and items damaged by mold, spores, fungi,

or other living organisms. Property Owner expressly

waives all claims against RestorePro for property damage

or bodily injury caused by mold, spores, fungi, and other

living organisms.

Property Owner understands that this is not a contract for

reconstruction or restoration of damaged property, but only

for emergency board ups and placing temporary tarps on

roofs. While RestorePro provides reconstruction and

restoration services, any such services must be the subject

of another written contract.

Property Owner understands and acknowledges that

Property Owner is liable to RestorePro for all payments

invoiced by RestorePro pursuant to this authorization.

Property Owner shall pay all invoices for services rendered

under this authorization within 30 days of receipt. Failure

to pay such invoices shall be treated as a default, entitling

RestorePro to all costs of collection including a reasonable

attorney’s fee. Interest shall accrue on unpaid balances

after default at a rate of 1.5% per month following default.

Property Owner assigns to RestorePro such proceeds of the

above-referenced insurance policy, or other applicable

policies, as shall be required to pay RestorePro fully for the

services described in this work authorization, and direct

the above-referenced insurance company to make

-4-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

payments directly to RestorePro. Property Owner

understands that while RestorePro will send invoices to

insurance companies as an accommodation for its

customers, Property Owner is ultimately responsible for all

payments under this work authorization.

This is the entire agreement between Property Owner and

RestorePro. No change, addition, modification, or waiver of

any of the provisions of this contract shall be binding upon

either party unless made in writing and signed by the

authorized representative of each party.

THIS AUTHORIZATION EXTENDS TO EMERGENCY

SERVICES ONLY, AND FURTHER WORK BY

RESTOREPRO MUST BE THE SUBJECT OF A

SEPARATE CONTRACT, AS AGREED IN WRITING

BETWEEN PROPERTY OWNER & RESTOREPRO.

When presented with the Contract, Defendant telephoned her daughter’s then-

fiancé, Matthew Collins, seeking advice on “whether to sign it” since he was a general

contractor. Defendant ultimately signed the Contract after she had consulted with

Mr. Collins.

During the walkthrough, Ms. Turner also observed that nails, rather than

screws, had been used for the ceiling. She testified that the use of nails was normal

for a home built in 1946. In her opinion, Ms. Turner believed the collapse was due to

“the hot to cold weather caus[ing] the ceiling to fall in.” Ms. Turner also noted that

“the area is dry [with] no water or plumbing. The installation is blown in. . . . [T]he

ceiling is falling down, but [we] are waiting on the testing.”

RestorePro did not collect samples or conduct the asbestos testing; rather, it

outsourced the work to Mold Girl, LLC. After collecting ten samples on 19 November

-5-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

2021, Mold Girl sent them to Hayes Microbial Consulting for testing. Hayes

Microbial Consulting delivered its report three days later, concluding that none of the

samples were positive for asbestos.

Before the test results came back, however, Mr. Collins and Defendant cleaned

up and repaired the damage on 20 November 2021. Mr. Collins testified: he contacted

Tony Hewitt to repair the ceiling and was referred to Jim Swords, who acted as Mr.

Hewitt’s subcontractor; Mr. Hewitt and Mr. Swords purchased all materials for the

ceiling repair; Mr. Collins never received an invoice for the work completed or

materials purchased, but paid Mr. Hewitt $2,300.00 for the ceiling repair; Mr. Collins

repainted the home thereafter; the crown molding and carpet needed to be replaced;

the living room walls needed to be re-painted once the crown molding was replaced;

Mr. Collins purchased insulation and paint for his portion of the repairs; Mr. Collins

paid an individual $150.00 to haul off materials; and Defendant gave Mr. Collins a

check for $2,300.00, which he had not cashed.

When making the repairs, Mr. Collins observed that the ceiling had been

fastened to the roof with what appeared to be “sheetrock nails.” Mr. Collins observed

that “some nails were still in the plasterboard. And there were some nails that were

still in the joist.” Mr. Collins described the sheetrock nails as,

fairly flat, thin head, that’s about five sixteenths of an inch

in diameter. Shaft of the nail, probably about an eighth of

an inch and then, I’m guessing again, inch and a quarter,

maybe an inch and a half long. I did not do any of this with

the measuring tape, but just familiarity with fasteners on

-6-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

construction sites.

He also reported that he believed the weight of the ceiling caused it to separate from

the nails since two additional layers of plaster had been added sometime in the past.

Ms. Turner notified Mr. Collins of the negative asbestos test results on 23

November 2021, which Mr. Collins relayed to Defendant. Mr. Collins testified that

at this juncture, Defendant “was going to call State Farm and get a clearer picture of

the process going forward.” However, neither Mr. Collins nor Defendant contacted

RestorePro to inform them of the cleanup work.

On 29 November 2021, Adrienne Sanders, an “assignment claim handler” with

State Farm, contacted Mr. Collins to schedule an inspection of Defendant’s home.

Ms. Sanders inspected the home on 1 December 2021. During her walkthrough, Ms.

Sanders took photos and observed “that the ceiling . . . had been replaced,” prompting

her to tell Defendant: “Hey, I need to see . . . the original damages.” Ms. Sanders

further observed: “the perimeter of the ceiling had been removed”; there was no

“damage to the walls”; and there was “no visible, direct physical loss.” Ms. Sanders

noted that since “the repairs had been completed,” she requested photos of the

original physical damage.

On 8 December 2021, State Farm denied Defendant’s insurance claim since

her policy excluded coverage for “damage involving collapse and materials used in

repair, construction, renovation or remodeling.” Ms. Sanders testified that “the policy

is very specific as to when collapse applies,” and that “based on [her] inspection,” the

-7-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

criteria for collapse had not been satisfied.

As a result, RestorePro generated an invoice in the amount of $1,998.11 for the

services rendered. The invoice itemized the following items: $240.07 for the

“[e]mergency service call - during business hours”; $180.04 for the Hazardous

Waste/Mold Cleaning Technician; $408.00 for the Asbestos test base fee; $810.00 for

the asbestos test materials; and $360.00 for the “air clearance-per sample.”

RestorePro sent Defendant a collection letter on 18 April 2022, requesting that

Defendant pay $2,117.99. The collection letter outlined that Defendant owed

$1,998.11 for the services rendered and $119.88 in late fees and interest. Defendant

refused to pay the invoice. RestorePro thus filed a complaint against Defendant in

the District Court Division of Mecklenburg County on 15 July 2022. The complaint

asserted claims for breach of contract, enforcement of a claim of lien on real property,1

and “quantum meruit/unjust enrichment.”

Defendant answered, joined State Farm as a party to the action, and asserted

several counterclaims, including: unfair and deceptive trade practices (“UDTPA

counterclaims”) against RestorePro and State Farm, both individually and jointly;

slander of title against RestorePro; breach of contract against State Farm; and

declaratory judgment against both RestorePro and State Farm. Defendant asserted

she did not pay for RestorePro’s services because State Farm wrongfully denied

1 RestorePro later voluntarily dismissed its claim for enforcement of a claim of lien.

-8-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

coverage under the homeowner’s insurance policy. Defendant maintained RestorePro

and State Farm acted in-concert to deny coverage, and RestorePro had not

“perform[ed] emergency services . . . [or] given, much less approved, an estimate for

such services[.]” Defendant simultaneously moved to transfer the action to the

Superior Court Division “given that the counterclaims sued on . . . exceed[ed]

$25,000.00.” A consent order was later entered, transferring the matter to the

Superior Court Division of Mecklenburg County.

Pertinent to Defendant’s UDTPA counterclaims, both RestorePro and State

Farm independently contracted with a network service provider known as Contractor

Connections (“CC”), which allowed both to receive referrals through CC’s network

service provider portal. However, it was maintained that there was never a “Premier

Service Program assignment” for Defendant’s matter, and RestorePro never acted as

a service provider under State Farm’s Premier Service Program.

Both RestorePro and State Farm moved for summary judgment on several

claims and counterclaims at the close of discovery. Defendant also moved the trial

court to compel discovery from State Farm under N.C. Gen. Stat. § 1A-1, Rule 37.

The trial court entered its order on 22 May 2024, ruling on all motions.

That order: (1) denied summary judgment on RestorePro’s claim for breach of

contract; (2) partially granted summary judgment on RestorePro’s claim for quantum

meruit/unjust enrichment as to Defendant’s liability, but denied summary judgment

on the issue of damages; (3) granted summary judgment in favor of RestorePro on

-9-

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

Defendant’s UDTPA counterclaim against RestorePro; (4) denied summary judgment

in favor of Defendant on her UDTPA counterclaim against State Farm; (5) granted

summary judgment in favor of RestorePro and State Farm on Defendant’s joint

UDTPA counterclaim; (6) granted summary judgment in favor RestorePro on

Defendant’s slander of title counterclaim against RestorePro; (7) denied summary

judgment in favor of Defendant on its breach of contract counterclaim against State

Farm; (8) granted summary judgment in favor of RestorePro and State Farm’s on

Defendant’s joint declaratory judgment counterclaim; and (9) denied Defendant’s

motion to compel discovery. Accordingly, the following survived summary judgment:

RestorePro’s breach of contract claim against Defendant; RestorePro’s quantum

meruit/unjust enrichment claim against Defendant as to the issue of damages;

Defendant’s breach of contract counterclaim against State Farm; and Defendant’s

individual UDTPA counterclaim against State Farm.

The trial court certified its order “for immediate appeal with no just reason for

delay pursuant to Rule 54(b) of the North Carolina Rules of Civil Procedure.” It

added, “[s]hould any party timely appeal from this Order, this action shall be

STAYED in its entirety upon the filing date of any notice of appeal from this Order,

pursuant to N.C. [Gen. Stat.] § 1-294 [(2025)].” Defendant timely appeals and State

Farm timely cross-appeals from the trial court’s order.

II. Jurisdiction

Although the trial court’s order is interlocutory, and interlocutory orders

- 10 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

ordinarily are not immediately appealable, this Court has jurisdiction since the trial

court provided a Rule 54(b) certification. N.C. Gen. Stat. § 1A-1, R. 54 (2025).

III. Analysis

Defendant raises several challenges to the trial court’s order. Defendant

asserts the trial court erred in denying her motion to compel discovery from State

Farm. Defendant also argues the trial court erred in: granting summary judgment

in favor of State Farm and RestorePro on Defendant’s joint UDTPA counterclaim;

denying summary judgment on her individual UDTPA counterclaim against State

Farm; granting summary judgment on her individual UDTPA counterclaim against

RestorePro; and the trial court erred in granting partial summary judgment in favor

of RestorePro on its quantum meruit/unjust enrichment claim. On cross-appeal,

State Farm argues that the trial court erred in denying State Farm summary

judgment on Defendant’s counterclaim for breach of contract, including the implied

covenant of good faith and fair dealing. Finally, State Farm argues the trial court

erred in denying it summary judgment on Defendant’s individual UDTPA

counterclaim against State Farm.

A. Motion to Compel

Defendant asserts the trial court abused its discretion by denying her Rule 37

motion to compel discovery from State Farm. Defendant asserts the discovery she

sought to compel “is highly relevant to her [UDTPA counterclaims] against State

Farm and RestorePro.” She maintains that State Farm should be compelled to

- 11 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

“disclose the full nature of its relationship with RestorePro and [CC]” since the

information “will likely prove that State Farm engages in an unfair insurance

practice for the purpose of evading payment on claims[.]”

Under North Carolina law, parties may obtain discovery by one or more of the

following methods enumerated by statute: “depositions upon oral examination or

written questions; written interrogatories; production of documents or things or

permission to enter upon land or other property, for inspection and other purposes;

physical and mental examinations; and requests for admission.” N.C. Gen. Stat. §

1A-1, Rule 26(a) (2025). Generally, “[p]arties may obtain discovery regarding any

matter, not privileged, which is relevant to the subject matter involved in the pending

action[.]” Id. § 1A-1, R. 26(b)(1). “The relevancy test for discovery is not the same as

the relevancy test for admissibility into evidence.” Shellhorn v. Brad Ragan, Inc., 38

N.C. App. 310, 314, 248 S.E.2d 103, 106 (1978). “To be relevant for purposes of

discovery, the information need only be ‘reasonably calculated’ to lead to the discovery

of admissible evidence.” Id.; Adams v. Lovette, 105 N.C. App. 23, 29, 411 S.E.2d 620,

624 (1992); Willis v. Duke Power Co., 291 N.C. 19, 34, 229 S.E.2d 191, 200 (1976).

“One of the primary purposes of the discovery rules is to facilitate the

disclosure prior to trial of any unprivileged information that is relevant and material

to the lawsuit so as to permit the narrowing and sharpening of the basic issues and

facts that will require trial.” Am. Tel. & Tel. Co. v. Griffin, 39 N.C. App. 721, 726,

251 S.E.2d 885, 888 (1979). To that end, “the discovery rules ‘should be constructed

- 12 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

liberally’ so as to substantially accomplish their purposes.” Id. at 727, 251 S.E.2d at

888 (quoting Willis, 291 N.C. at 34, 229 S.E.2d at 200). Nonetheless, “neither party

should be allowed to roam at will in the closets of the other.” Willis, 291 N.C. at 34,

229 S.E.2d at 200.

N.C. Gen. Stat. § 1A-1, Rule 37 provides:

A party, upon reasonable notice to other parties and all

persons affected thereby, may apply for an order

compelling discovery as follows:

....

(2) Motion. — If a deponent fails to answer a question

propounded or submitted under Rules 30 or 31, or a

corporation or other entity fails to make a designation

under Rule 30(b)(6) or 31(a), or a party fails to answer an

interrogatory submitted under Rule 33, or if a party, in

response to a request for inspection submitted under Rule

34, fails to respond that inspection will be permitted as

requested or fails to permit inspection as requested, the

discovering party may move for an order compelling an

answer, or a designation, or an order compelling inspection

in accordance with the request.

The administration of Rule 37 “lies necessarily within the province of the trial

courts[.]” Carpenter v. Cooke, 58 N.C. App. 381, 385, 293 S.E.2d 630, 632 (1982).

“Whether or not the party’s motion to compel discovery should be granted or denied

is within the trial court’s sound discretion and will not be reversed absent an abuse

of discretion.” Wagoner v. Elkin City Sch.’ Bd. of Educ., 113 N.C. App. 579, 585, 440

S.E.2d 119, 123 (1994); Friday Invs., LLC v. Bally Total Fitness of the Mid-Atl., Inc.,

370 N.C. 235, 241, 805 S.E.2d 664, 669 (2017) (citations and quotation marks omitted)

- 13 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

(“A trial court’s discovery ruling is reviewed for abuse of discretion and will be

overturned only upon a showing that its ruling was manifestly unsupported by reason

and could not have been the result of a reasoned decision[.]”).

Here, Defendant’s motion to compel asserted that State Farm and RestorePro

maintained an undisclosed business relationship as follows:

4. The Counterclaim alleges, among other things, that after

[Defendant] reported her ceiling collapse to State Farm,

State Farm referred her to RestorePro to help her with her

emergency. At the time, [Defendant] was not aware that

State Farm and RestorePro had long-standing business

relationship or that RestorePro was participating

contractor in State Farm’s managed repair program called

the “Premier Service Program” since at least mid-2020.

Neither RestorePro nor State Farm disclosed this to

[Defendant].

....

6. As alleged in the Counterclaim, the undisclosed

relationship between State Farm and RestorePro is central

issue in the case.

7. During this discovery, [Defendant] had requested the

production of agreements pertaining to the relationship

between State Farm and RestorePro and questioned

witnesses about any existing referral or preferred service

relationship between the two companies. No such

documents were produced and there was no

acknowledgement by RestorePro or State Farm of any

formal arrangement between the two companies.

8. [Defendant] then sought to take 30(b)(6) deposition of

State Farm representative about the relationship between

State Farm and RestorePro. In response to that notice,

State Farm filed motion for protective order, which

postponed the deposition on this issue. The motion for

- 14 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

protective order was later heard by this Court. In sum, the

Court permitted [Defendant] to depose State Farm’s

representative on the parties’ relationship, with some

limitations. The Court announced that it would prepare an

order. The deposition of State Farm’s 30(b)(6)

representative was rescheduled to proceed on September 7,

2023.

9. On September 6, 2023[,] the day before the rescheduled

deposition of State Farm and before the Court issued its

order State Farm sent an email to Counterclaim Plaintiff

disclosing that RestorePro was participating contractor in

State Farm’s Premier Service Program through third-party

referral company called Contractor Connection. Bottom

line, RestorePro is subcontractor to Contractor

Connection’s prime contract with State Farm.

....

15. RestorePro stated that the agreement between

Contractor Connection and RestorePro was confidential,

and that it would agree to produce copy of the agreement if

[Defendant] signed confidentiality agreement.

16. On October 30, 2023, Confidentiality Agreement was

entered into between all parties pertaining to the

disclosure of the agreement between RestorePro and

Contractor Connection.

17. For its part, State Farm refused to produce its

agreement with Contractor Connection, among other

documents related to its Premier Service Program. In good

faith effort to obtain the documents before the rescheduled

deposition of State Farm, [Defendant] notified State Farm

of the information that remained outstanding, to which

State Farm responded it would not comply. . . .

18. On November 3, 2023, [Defendant] conducted the

deposition of State Farm’s 30(b)(6) witness regarding State

Farm’s Premier Service Program, in which the deponent

testified to the existence of the agreement between State

Farm and Contractor Connection the same agreement that

- 15 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

State Farm refused to produce.

19. As will be demonstrated more fully at the hearing on

this Motion, State Farm’s objections to the production of

the agreement between State Farm and Contractor

Connection are groundless and should be overruled. The

agreement is directly related to the issues raised by

[Defendant] in the Counterclaims and there is no good or

justifiable reason for failing to produce it.

In light of these allegations, Defendant requested that the trial court compel State

Farm to produce the following documents:

a. All contracts or agreement[s] between State Farm and

Contractor Connection in effect on or about November 19,

2021;

b. Any disclosures that State Farm provides its insureds

when State Farm has initiated the Premier Services

Program; and

c. Descriptions, rules, policies, guidelines, and handbooks

pertaining to State Farm’s Premier Services Program and

Contractor Services Program applicable to Contractor

Connection.

The trial court ultimately denied Defendant’s motion since “good grounds d[id] not

exist for compelling State Farm to provide the discovery” Defendant sought.

Our review leads us to hold that the trial court did not abuse its discretion by

denying Defendant’s motion to compel discovery from State Farm since the materials

sought are irrelevant to Defendant’s counterclaims. See, e.g., Wagoner, 113 N.C. App.

at 585, 440 S.E.2d at 123 (“Plaintiff has failed to meet her burden of proving that her

requests relate to information both relevant and necessary to her claims.”); Howlett

v. CSB, LLC, 164 N.C. App. 715, 722, 596 S.E.2d 899, 904 (2004) (“In the absence of

- 16 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

a showing that the discovery sought was relevant to that question, any error in

denying plaintiffs’ motion to compel was harmless.”). Several of Defendant’s

counterclaims rest on the assertion that RestorePro and State Farm—through their

independent contracts with CC and State Farm’s Premier Service Program—unfairly

colluded to deny Defendant’s insurance claim. However, the record tends to show

that State Farm never offered its Premier Service Program to Defendant, and that

the insurance agent whom Defendant spoke with did not have the authority to offer

State Farm’s Premier Service Program:

5. During this initial call, State Farm did not determine

that [Defendant’s] loss was eligible for State Farm’s

Premier Service Program and State Farm did not offer use

of its Premier Service Program to [Defendant].

....

15. Mr. Snider does not have authority to offer State Farm’s

Premier Services Program to his customers.

16. When Mr. Snider’s employee provided [Defendant] with

the name and telephone number for RestorePro on

November 19, 2021, he did not do so as part of State Farm’s

Premier Service Program. When [Defendant] contacted

RestorePro for services, she did not do so through State

Farm’s Premier Service Program.

The record does not show a “Premier Service Program assignment” was made for

Defendant’s matter, and RestorePro never acted as a service provider under State

Farm’s Premier Service Program. Compelling the discovery of documents pertaining

to State Farm’s Premier Service Program is irrelevant to Defendant’s counterclaims

- 17 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

against both RestorePro and State Farm since it is not “‘reasonably calculated’ to lead

to the discovery of admissible evidence.” Shellhorn, 38 N.C. App. at 314, 248 S.E.2d

at 106 (citation omitted).

Although both RestorePro and State Farm independently contracted with CC

and utilized their network portal, the record reflects that Defendant’s matter “did not

come through” CC. Instead, State Farm’s call log reflects that an agent “gave

[Defendant] RestorePro’s number to call right away.” And the person in charge of the

business operations at RestorePro, Scott Gilbert, testified that RestorePro’s contract

with CC had no bearing on the resolution of Defendant’s matter:

Q. And in any event, the Simpson matter -- issue, did not

come through any kind of third-party administrator; is that

correct?

A. That’s correct.

Q. It came through an insurance agent who we had

marketed in the past; is that right?

A. Through her -- through -- yes, and through [Defendant]

herself.

Q. Okay. And Contractor Connections, the agreement that

we’ve been discussing today, didn’t have any relationship

to the [Defendant’s] case at any point; is that right?

A. That’s correct.

Q. And there was never a Contractor Connection’s

assignment through the portal for the [Defendant’s]

matter?

A. That’s correct.

- 18 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

Q. And as a result of it never being assigned through

Contractor Connections, the terms that are outlined in the

Contractor Connections agreement that was produced do

not apply to the Simpson matter; is that correct?

A. That’s correct.

Q. And as a result of it never going through the Contractor

Connections portal or assignment process, nothing was

ever paid in the form of any commissions or fees to

Contractor Connections for the Simpson job; is that right?

A. That’s correct.

A CC assignment for Defendant’s matter was never generated within CC’s portal,

rendering the contract between State Farm and CC irrelevant to this case. Wagoner,

113 N.C. App. at 585, 440 S.E.2d at 123; Howlett, 164 N.C. App. at 722, 596 S.E.2d

at 904; Shellhorn, 38 N.C. App. at 314, 248 S.E.2d at 106. Accordingly, we hold the

trial court did not abuse its discretion in denying Defendant’s motion to compel.

Wagoner, 113 N.C. App. at 585, 440 S.E.2d at 123.

B. Summary Judgment

N.C. Gen. Stat. § 1A-1, Rule 56 (2025) provides the rules and procedures

pertaining to summary judgment in North Carolina. Rule 56 states that summary

judgment “shall be rendered forthwith if 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). “[A] fact is ‘material’

if it would constitute or irrevocably establish any material element of a claim or a

- 19 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

defense.” Lowe v. Bradford, 305 N.C. 366, 369, 289 S.E.2d 363, 366 (1982). On the

other hand, “[a] ‘genuine issue’ is one that can be maintained by substantial

evidence.” Dobson v. Harris, 352 N.C. 77, 83, 83, 530 S.E.2d 829, 835, 835 (2000)

(quoting Kessing v. Nat’l Mortg. Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971)).

The “movant is entitled to summary judgment . . . when only a question of law

arises based on undisputed facts.” Parkes v. Hermann, 376 N.C. 320, 323, 852 S.E.2d

322, 324 (2020) (quoting Ussery v. Branch Banking & Tr. Co., 368 N.C. 325, 334, 777

S.E.2d 272, 278 (2015)) (citation omitted). Indeed, the purpose of summary judgment

“is to eliminate formal trials where only questions of law are involved.” Kessing, 278

N.C. at 534, 180 S.E.2d at 830. The showing required for summary judgment “may

be accomplished by proving an essential element of the opposing party’s claim does

not exist, cannot be proven at trial, or would be barred by an affirmative defense, or

by showing through discovery that the opposing party cannot produce evidence to

support an essential element of her claim.” Dobson, 352 N.C. at 83, 530 S.E.2d at

835. “Generally[,] this means that on ‘undisputed aspects of the opposing evidential

forecast,’ where there is no genuine issue of fact, the moving party is entitled to

judgment as a matter of law.” Lowe, 305 N.C. at 369, 289 S.E.2d at 366 (citation

omitted).

“The party moving for summary judgment bears the burden of bringing forth

a forecast of evidence which tends to establish that there is no triable issue of material

fact.” Creech v. Melnik, 347 N.C. 520, 526, 495 S.E.2d 907, 911 (1998). When “the

- 20 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

moving party meets this burden, the non-moving party must in turn either show that

a genuine issue of material fact exists for trial or must provide an excuse for not doing

so.” Lowe, 305 N.C. at 369, 289 S.E.2d at 366. If a motion for summary judgment is

made and supported as provided in Rule 56:

an adverse party may not rest upon the mere allegations or

denials of his pleading, but his response, by affidavits or as

otherwise provided in this rule, must set forth specific facts

showing that there is a genuine issue for trial. If he does

not so respond, summary judgment, if appropriate, shall be

entered against him.

N.C. Gen. Stat. § 1A-1, Rule 56(e). But “[i]f the moving party fails to meet his burden,

summary judgment is improper regardless of whether the opponent responds. The

goal of this procedural device is to allow penetration of an unfounded claim or defense

before trial.” Lowe, 305 N.C. at 369, 289 S.E.2d at 366 (citation omitted). Similarly,

“[i]f there is any question as to the credibility of witnesses or the weight of evidence,

a summary judgment should be denied[.]” Kessing, 278 N.C. at 535, 180 S.E.2d at

830 (citation omitted).

“The standard of review of an appeal from summary judgment is de novo.”

Morrell v. Hardin Creek, Inc., 371 N.C. 672, 680, 821 S.E.2d 360, 366 (2018). “‘Under

a de novo review, the court considers the matter anew and freely substitutes its own

judgment’ for that of the lower tribunal.” Craig v. New Hanover Cnty. Bd. of Educ.,

363 N.C. 334, 337, 678 S.E.2d 351, 354 (2009) (citations omitted). “A ruling on a

motion for summary judgment must consider the evidence in the light most favorable

- 21 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

to the non-movant, drawing all inferences in the non-movant’s favor.” Morrell, 371

N.C. at 680, 821 S.E.2d at 366.

1. Defendant’s UDTPA Counterclaims

Defendant maintains the trial court erroneously granted summary judgment

for RestorePro and State Farm on Defendant’s joint UDTPA counterclaim, and

RestorePro on Defendant’s individual UDTPA counterclaim. Defendant further

contends that the trial court erroneously denied summary judgment on her individual

UDTPA counterclaim against State Farm.

The North Carolina UDTPA is codified under N.C. Gen. Stat. § 75-1.1 et seq.

(2025). “Unfair methods of competition in or affecting commerce, and unfair or

deceptive acts or practices in or affecting commerce, are declared unlawful.” Id. § 75-

1.1(a). “The law was enacted to establish an effective private cause of action for

aggrieved consumers in this State, and it was needed because common law remedies

had proved often ineffective.” Bhatti v. Buckland, 328 N.C. 240, 245, 400 S.E.2d 440,

443 (1991) (citation and quotation marks omitted). To that end, Chapter 75 provides

the following mechanism to enforce the provisions of Section 75-1.1:

If any person shall be injured or the business of any person,

firm or corporation shall be broken up, destroyed or injured

by reason of any act or thing done by any other person, firm

or corporation in violation of the provisions of this Chapter,

such person, firm or corporation so injured shall have a

right of action on account of such injury done, and if

damages are assessed in such case judgment shall be

rendered in favor of the plaintiff and against the defendant

for treble the amount fixed by the verdict.

- 22 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

N.C. Gen. Stat. § 75-16 (2025).

“In order to establish a prima facie claim for unfair trade practices, a plaintiff

must show: (1) defendant committed an unfair or deceptive act or practice, (2) the

action in question was in or affecting commerce, and (3) the act proximately caused

injury to the plaintiff.” SciGrip, Inc. v. Osae, 373 N.C. 409, 426, 838 S.E.2d 334, 347

(2020) (quoting Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001))

(citation omitted); Nobel v. Foxmoor Grp., 380 N.C. 116, 120, 868 S.E.2d 30, 33 (2022).

“Whether a trade practice is unfair or deceptive usually depends upon the facts

of each case and the impact the practice has in the marketplace.” Marshall v. Miller,

302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). “A practice is unfair when it offends

established public policy as well as when the practice is immoral, unethical,

oppressive, unscrupulous, or substantially injurious to consumers.” Id. And “a

practice is deceptive if it has the capacity or tendency to deceive; proof of actual

deception is not required.” Id. That said, “the consumer need only show that an act

or practice possessed the tendency or capacity to mislead, or created the likelihood of

deception, in order to prevail under the states’ unfair and deceptive practices act.”

Id. “The question of what constitutes an unfair or deceptive trade practice is an issue

of law. If the material facts are not disputed, the court should determine whether the

defendant’s conduct constituted an unfair or deceptive trade practice.” Nelson v.

Hartford Underwriters Ins. Co., 177 N.C. App. 595, 609, 630 S.E.2d 221, 231 (2006)

(citation omitted).

- 23 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

As for the second element—in or affecting commerce—the UDTPA defines

“commerce” as “all business activities, however denominated, but does not include

professional services rendered by a member of a learned profession.” N.C. Gen. Stat.

§ 75-1.1(b). “The term [b]usiness activities . . . connotes the manner in which

businesses conduct their regular, day-to-day activities, or affairs, such as the

purchase and sale of goods, or whatever other activities the business regularly

engages in and for which it is organized.” Nobel, 380 N.C. at 120, 868 S.E.2d at 33

(citation and quotation marks omitted).

As to the final element, “[u]nder the UDTPA, proximate cause is a question of

fact.” Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., 174 N.C. App. 49, 62,

620 S.E.2d 222, 232 (2005). “It must be shown that the plaintiff suffered actual injury

as a proximate result of defendant’s deceptive statement or misrepresentation.”

Pearce v. Am. Def. Life Ins. Co., 316 N.C. 461, 471, 343 S.E.2d 174, 180 (1986).

Relevant here, N.C. Gen. Stat. § 58-63-15(11) (2025) “enumerates a list of

practices which are, as a matter of law, instances of unfair and deceptive conduct.

Violation of any form of conduct listed in § 58-63-15(11) operates as a per se instance

of unfair and deceptive trade practice under N.C. Gen. Stat. § 75-1.1.” Murray v.

Nationwide Mut. Ins. Co., 123 N.C. App. 1, 9, 472 S.E.2d 358, 362 (1996). “Our courts

have repeatedly defined the insurance business as affecting commerce, when an

insurer provides insurance to a consumer purchasing a policy.” Id. at 10, 472 S.E.2d

at 363

- 24 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

a. Defendant’s Joint UDTPA Counterclaim

Defendant asserts the trial court erroneously granted summary judgment for

RestorePro and State Farm with respect to Defendant’s joint UDTPA counterclaim.

Defendant asserts State Farm and RestorePro engaged in an unfair and deceptive

trade practice by “failing to disclose their [contractual] relationship.” Defendant

maintains RestorePro and State Farm unfairly used this contractual relationship to

deny her coverage under State Farm’s policy. She also maintains that RestorePro

and State Farm “were unfairly colluding to serve their own interests to [her]

detriment.”

A close review of the record demonstrates that RestorePro and State Farm

were not engaged in a contractual relationship as Defendant alleges. Defendant

therefore cannot demonstrate the first element of her joint UDTPA claim. Dalton,

353 N.C. at 656, 548 S.E.2d at 711. Thus, no genuine issue of material fact remains,

and both RestorePro and State Farm were entitled to summary judgment on

Defendant’s joint UDTPA claim.

When RestorePro moved for summary judgment, it noted that Defendant

“cannot forecast any evidence showing that RestorePro engaged in unfair and

deceptive trade practices under N.C. Gen. Stat. § 75-1.1 on the basis of a purported

nefarious undisclosed relationship between RestorePro and State Farm when the

undisputed facts show otherwise.” RestorePro attached an affidavit from Mr. Alan

Piercy, a team manager with State Farm, to support its motion. That affidavit

- 25 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

provided that State Farm never offered its Premier Service Program to Defendant,

and that the insurance agent whom Defendant spoke with did not have the authority

to offer State Farm’s Premier Service Program.

Additionally, State Farm’s motion for summary judgment noted that

Defendant cannot demonstrate such a contractual relationship between RestorePro

and State Farm in light of the undisputed evidence obtained through discovery:

[Defendant] cannot forecast any evidence showing that

State Farm and RestorePro together committed any unfair

and deceptive trade practices under N.C. Gen. Stat. § 75-

1.1 as the undisputed material facts show that State Farm

and RestorePro did not have any contract with each other,

that State Farm did not send or refer RestorePro to

[Defendant], that [Defendant] requested that RestorePro

come to her house to assist with the damage, that

[Defendant] voluntarily entered into a contract with

RestorePro, that RestorePro performed the services that

[Defendant] authorized, that RestorePro billed [Defendant]

for those services based on its industry standards without

any input or agreement with State Farm, and that State

Farm made its claim decision based on [Defendants’] visual

observations, photographs that showed the conditions as

they existed after the ceiling fell, verbal representations of

[Defendant] and Mr. Collins, and the policy provisions.

Although Defendant submitted her own affidavit claiming there was a “pre-

existing arrangement between State Farm and RestorePro,” the record shows no such

agreement existed. Record evidence shows that State Farm did not “have any

contracts with RestorePro or any other specific individual contractors,” and the last

period of time in which State Farm contracted with specific contractors was

“approximately 2013, 2014.” For these reasons, we hold that the trial court did not

- 26 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

commit error by granting summary judgment for RestorePro and State Farm on

Defendant’s joint UDTPA counterclaim. Defendant’s assignment of error is

overruled.

b. Defendant’s UDTPA Counterclaim Against RestorePro

Defendant asserts the trial court erroneously granted summary judgment for

RestorePro on Defendant’s individual UDTPA counterclaim. Defendant maintains

that RestorePro engaged in unfair and deceptive trade practices by: deceiving

Defendant into signing the Contract; fraudulently billing Defendant for emergency

services it did not perform, and that Defendant did not consent to; charging

Defendant a fee that did not reflect the actual work RestorePro completed; and filing

a materially false and fictitious mechanics lien on Defendant’s home.

With respect to Defendant’s first argument—that she was deceived into

signing the Contract—the record evidence does not support this assertion, and no

genuine issue of material fact remains. Consequently, RestorePro was entitled to

summary judgment. N.C. Gen. Stat. § 1A-1, Rule 56(b)(1), (e); Dobson, 352 N.C. at

83, 530 S.E.2d at 835. Indeed, Defendant’s own deposition reflects that when

presented with the Contract, she telephoned Mr. Collins, seeking advice on “whether

to sign it” since he was a general contractor. Defendant ultimately agreed to the

testing and signed the Contract, after consulting Mr. Collins, who told her to sign it.

Ms. Collins, who was physically present during Ms. Turner’s walkthrough, also

testified that Defendant agreed to RestorePro conducting the testing and signed the

- 27 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

Contract. Additionally, Ms. Turner stated she gave Defendant and Ms. Collins an

opportunity to read the Contract, and that neither had any questions.

As to Defendant’s next two arguments, she fails to delineate which services

RestorePro billed her for that it did not complete. See N.C. R. App. P. 28(b)(6). In

any event, RestorePro’s invoice itemized the following matters, all of which touch and

concern the services rendered by RestorePro and its subcontractor, Mold Girl LLC:

$240.07 for the emergency services call during business hours; $180.04 for the

Hazardous Waste/Mold Cleaning Technician; $408.00 for the Asbestos test base fee;

$810.00 for the asbestos test materials; and $360.00 for the air clearance per sample.

Finally, with respect to RestorePro filing a materially false and fictitious

mechanics lien on Defendant’s home, we hold that appellate review of this question

is unnecessary, as RestorePro voluntarily dismissed its claim for enforcement of a

claim of lien on 16 December 2022—long before the trial court’s order rendered on 22

May 2024. Moreover, at the motion hearing, counsel for RestorePro explained that it

voluntarily dismissed the claim of lien since it accidentally wrote the incorrect last

date of work.

Accordingly, the trial court did not err by granting summary judgment for

RestorePro on Defendant’s individual UDTPA counterclaim. Defendant’s assignment

of error is overruled.

c. Defendant’s UDTPA Counterclaim Against State Farm

Defendant asserts the trial court erroneously denied summary judgment on

- 28 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

her individual UDTPA counterclaim against State Farm. Defendant maintains the

trial court should have awarded summary judgment in her favor because no genuine

issue of material fact remained as to whether State Farm engaged in an unfair and

deceptive trade practice. To that end, Defendant asserts that State Farm:

misrepresented pertinent facts relating to coverage in violation of N.C. Gen. Stat. §

58-63-15(11)(a); failed to conduct a reasonable investigation in violation of N.C. Gen.

Stat. § 58-63-15(11)(d); and failed to promptly provide a reasonable explanation for

the denial of Defendant’s claim in violation of N.C. Gen. Stat. § 58-63-15(11)(n).

“[T]he relationship between N.C. [Gen. Stat.] § 75-1.1, which prohibits unfair

and deceptive acts or practices, and N.C. [Gen. Stat.] § 58-63-15(11), which defines

unfair practices in the settlement of insurance claims” has been previously addressed

by our Courts. Gray v. N.C. Ins. Underwriting Ass’n, 352 N.C. 61, 62, 529 S.E.2d 676,

678 (2000). “Trade practices in the insurance business are regulated by Chapter 58,

Article 63 of the North Carolina General Statutes. Unfair and deceptive trade

practices are prohibited generally, and unfair and deceptive claim settlement

practices are prohibited specifically[.]” Nelson, 177 N.C. App. at 608, 630 S.E.2d at

230 (citations omitted).

“N.C. Gen. Stat. § 58-63-15(11) enumerates a list of practices which are, as a

matter of law, instances of unfair and deceptive conduct.” Murray, 123 N.C. App. at

10, 472 S.E.2d at 363. “The [v]iolation of any form of conduct listed in [subsection]

58-63-15(11) operates as a per se instance of unfair and deceptive trade practice under

- 29 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

N.C. Gen. Stat. § 75-1.1.” Id. That said, “[a] plaintiff must prove not only a violation

of G.S. 75-1.1 by [a] defendant, but also . . . actual injury as a proximate result” of a

defendant’s actions. Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 184, 268

S.E.2d 271, 273–74 (1980) (citation omitted).

Relevant here, subsection 58-63-15(11) provides that the following conduct

amounts to an unfair and deceptive trade practice:

a. Misrepresenting pertinent facts or insurance policy

provisions relating to coverages at issue;

....

d. Refusing to pay claims without conducting a reasonable

investigation based upon all available information;

....

n. Failing to promptly provide a reasonable explanation of

the basis in the insurance policy in relation to the facts or

applicable law for denial of a claim or for the offer of a

compromise settlement.

N.C. Gen. Stat. § 58-63-15(11)(a), (d), (n).

Defendant maintains that State Farm misrepresented pertinent facts as to her

insurance policy by failing to disclose its contractual relationship with RestorePro.

In doing so, Defendant “fully” incorporated its arguments pertaining to the trial

court’s grant of summary judgment for RestorePro and State Farm on Defendant’s

joint UDTPA counterclaim. But since we have already determined no such

contractual relationship exists between State Farm and RestorePro, Defendant’s

contention is meritless. Accordingly, we decline further consideration since we have

- 30 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

already addressed these arguments in subsection B(1)(a) of this opinion.

Defendant next argues that State Farm failed to conduct a reasonable

investigation into Defendant’s insurance claim, thus amounting to an unfair and

deceptive trade practice. See, e.g., Country Club of Johnston Cnty., Inc. v. United

States Fid. & Guar. Co., 150 N.C. App. 231, 247, 563 S.E.2d 269, 280 (2002).

Defendant maintains that State Farm’s investigation was “unscrupulous, unethical,

and deceptive” because it “relied upon information it was covertly fed by RestorePro

before State Farm inspected [Defendant’s] home.”

The undisputed evidence shows that Ms. Sanders, an agent of State Farm,

conducted a reasonable investigation of Defendant’s home based on all available

information at the time. During her walkthrough on 1 December 2021, Ms. Sanders

took photos and observed “that the ceiling . . . had been replaced,” prompting her to

tell Defendant: “Hey, I need to see . . . the original damages.” At this point, Ms.

Sanders observed: “the perimeter of the ceiling had been removed”; there was no

“damage to the walls”; and there was “no visible, direct physical loss.” Given that the

damage had already been repaired by Mr. Collins, Ms. Sanders relied on all other

available information, including RestorePro’s photos, RestorePro’s reports, Mr.

Collins’s photos, and Mr. Collins’s statements. Contrary to Defendant’s urging, State

Farm did not covertly use RestorePro’s photos or reports. In fact, when Ms. Turner

presented Defendant with the Contract to conduct the asbestos testing, Ms. Turner

explained the information would be shared with State Farm. Moreover, Defendant’s

- 31 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

daughter, Ms. Collins, conceded that neither her nor Defendant had any objections to

RestorePro taking photos.

Additionally, the record tends to show Ms. Sanders did not investigate the attic

for water damage since: no water damage was reported by Defendant, RestorePro, or

Mr. Collins; there was no visible water damage during Ms. Sander’s inspection of the

home; RestorePro’s photos did not show any sort of water stains or damage to the

ceiling joists; and RestorePro’s report noted that “the area” was dry “with no water or

plumbing.” In fact, the log of Defendant’s initial call to State Farm notes: named

insured “states ceiling caving in is not due to water damage.” Accordingly,

Defendant’s arguments are overruled.

Defendant next contends that State Farm failed to promptly provide a

reasonable explanation for the denial of her claim, thus amounting to an unfair and

deceptive trade practice. Defendant maintains this case is analogous to Denc, LLC v.

Phila. Indem. Ins. Co., 32 F.4th 38 (4th Cir. 2022) (hereinafter “DENC III”).

Defendant correctly notes that an insurer must “do more than list all potentially

applicable policy terms alongside the facts” when providing an explanation for the

denial of coverage to its insured. Id. at 51. “Indeed, an insurer must reasonably

explain the denial’s basis in the insurance policy in relation to the facts.” Id. But

“insurers need not write a sophisticated legal memorandum”; they merely need to

“bridge the gap between policy and fact.” Id.

In DENC III, the United States Court of Appeals for the Fourth Circuit was

- 32 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

tasked with determining whether an insurance company engaged in an unfair and

deceptive trade practice under subsection 58-63-15(11)(n) by failing to “provide a

reasonable explanation of the basis in the insurance policy in relation to the facts . . .

for denial of a claim.” Id. at 50. The matter dealt with a dispute between an insured

apartment complex owner, DENC, and its insurer, Philadelphia Indemnity Insurance

Company. Id. at 42–43. The DENC case was first decided by the United States

District Court for the Middle District of North Carolina (“DENC I”). DENC I, LLC v.

Phila. Indem. Ins. Co., 421 F. Supp. 3d 224, 226 (M.D.N.C. 2019). The DENC I Court

granted summary judgment for the insured on the issue of insurance coverage, as

Philadelphia’s policy covered the collapse in question. Id. It also reserved the

remaining summary judgment motions for future resolution. Id.

The Middle District later “resolved the remaining aspects of the pending

summary judgment motions.” in “DENC II”. DENC II, LLC v. Phila. Indem. Ins. Co.,

426 F. Supp. 3d 151, 154 (M.D.N.C. 2019). Relevant here, in DENC II, both

Philadelphia and the insured moved for summary judgment on the insured’s UDTPA

claims, which were grounded in violations of N.C. Gen. Stat. § 58-63-15(11)(a), (d),

(g), (n). Id. The DENC II Court ultimately determined that Philadelphia violated

subsection 58-63-15(11)(n) and granted summary judgment for the insured on its

UDTPA claim. Id. at 157. The Court reasoned that Philadelphia violated subsection

58-63-15(11)(n) since: (1) Philadelphia sent “conflicting letters” to the insured about

coverage; (2) nothing in Philadelphia’s “denial letter link[ed] the basis in the

- 33 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

insurance policy . . . to the facts, as required by § 58-63-15(11)(n)”; and (3)

Philadelphia’s denial letter contained several provisions that were not a part of the

insured’s policy or did not apply to the collapse at issue. Id. at 155–56. And with

respect to the proximate cause element of the insured’s UDTPA claim, the Court

determined as follows:

As to the third element, it is undisputed that Philadelphia

did not pay anything on a valid insurance claim submitted

by DENC, so DENC has proven that Philadelphia

proximately injured DENC. See Cullen v. Valley Forge Life

Ins. Co., 161 N.C. App. 570, 580, 589 S.E.2d 423, 431 (2003)

(insurance letter wrongfully denying coverage under § 58-

65-15(1) met injury element for § 75-1.1); cf. Barbour, 361

F. Supp. 3d at 575 (no injury to § 75-1.1 plaintiff where

insurer “ultimately paid the full accidental death benefit

with interest”); Blis Day Spa, 427 F. Supp. 2d at 635 (no

injury where § 75-1.1 plaintiff lacked evidence defendant

“ever delayed payments”). While Philadelphia contends

DENC has not demonstrated any injury due to § 75-1.1

violations that is “separate from” the damages resulting

from Philadelphia’s breach of contract, . . . such separate or

different damages are not required. Cullen, 161 N.C. App.

at 580, 589 S.E.2d at 431 (“the same injury forming the

basis for plaintiff’s breach of contract claim . . . is also

sufficient for the purposes of an unfair and deceptive

practices claim”) . . . .

Id. at 157 (citations omitted). Since it was “undisputed that Philadelphia” wrongfully

denied its insured coverage on a valid insurance claim, the Court concluded that the

proximate cause and injury element of the insured’s UDTPA claim was satisfied. Id.

Thus, the DENC II court relied on the fact that the DENC I court granted summary

judgment on the issue of insurance coverage to establish the proximate cause element

- 34 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

of DENC’s UDTPA claim. Id.

On appeal, in “DENC III,” Philadelphia argued that “the [DENC II] court erred

in finding that it violated the UDTPA.” DENC III, 32 F.4th at 50. The Fourth Circuit

Court of Appeals noted: “On summary judgment, the [DENC II court] found that

Philadelphia improperly denied coverage and failed to reasonably explain its basis

for the denial. It thus held that Philadelphia breached the policy and violated the

UDTPA, granting partial summary judgment to [the insured].” Id. at 42–43. In

DENC III, the Fourth Circuit agreed with the DENC II court’s analysis, reasoning as

follows:

The letter relayed Philadelphia’s water-damage findings

and then, in rote fashion, recited purported policy terms.

It denied coverage because DENC’s damage was “the result

of long-term water intrusion and deteriorated wood

framing.” But none of the policy provisions Philadelphia

listed in the denial letter used the phrase “water

intrusion.” Nor did the letter explain which of the many

enumerated provisions barred coverage. This is

particularly troubling because “some of the provisions set

forth in the letter were not even part of the policy; several

had been deleted and superseded by policy amendments or

endorsements. Others patently [didn’t] apply to the

breezeway collapse at issue, such as those citing flood or

steam boilers.” DENC II, 426 F. Supp. 3d at 156. [The

insurance company] even included “the wrong provision

governing collapse.” Id. The drafters of the denial letter

conceded these errors. The district court was right to find

that [the insurance company] offered no “reasonable

explanation” for denying coverage, which § 58-63-15(11)(n)

requires. Even though the letter said that no “covered

collapse commenced” during the coverage period, it didn’t

explain (much less reasonably so) why the policy’s

operative Collapse Endorsement didn’t cover the loss.

- 35 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

Instead, it left DENC to decipher a morass of largely

inapplicable policy language with no clear connection to

[the insurance company’s] factual investigation.

Id. at 50–51 (citations omitted). Accordingly, the Fourth Circuit “affirm[ed] the

district court’s finding that [the insurance company’s] conduct violated § 58-63-

15(11)(n)—and thus the UDTPA—by failing to reasonably explain ‘the basis in the

insurance policy in relation to the facts’ for its denial.” Id. at 52.

As with the insurance company in DENC, State Farm’s denial letter failed to

adequately connect the insurance policy to the facts of its investigation. N.C. Gen.

Stat. § 58-63-15(11)(n). Instead, State Farm left Defendant “to decipher a morass of

largely inapplicable policy language with no clear connection to [its] factual

investigation.” DENC III, 32 F.4th at 51. State Farm’s denial letter to Defendant

first noted what her policy covered, as well as an exclusion: “Your policy provides

coverage for direct physical losses; however, the policy excludes damage involving

collapse and materials used in repair, construction, renovation or remodeling.”

After quoting the policy information, State Farm concluded: “Since the damage

sustained falls within this exclusionary language, we regret we can make no payment

as a result of this loss.” State Farm provided no factual basis as to why it was denying

Defendant’s claim, and it included several insurance provisions that Defendant was

left to decipher. See id. In fact, Ms. Sanders conceded that the letter included several

exclusions that were not the basis for denying Defendant coverage.

Moreover, the depositions of Ms. Sanders and Ms. Davis demonstrate that the

- 36 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

coverage letter fails to identify the reason for denying coverage. During Ms. Davis’s

deposition, she was asked to review the denial letter that Ms. Sanders drafted. Ms.

Davis was directly asked whether the letter explained whether coverage was granted

to Defendant, and if not, why:

Q Yeah, just from this letter, can you tell me whether or

not coverage was granted to Ms. Simpson?

A No.

Q Can you explain why there was no coverage in this case?

A No, I can’t.

Even though Ms. Davis was an assigned claim adjuster for Defendant’s matter, she

could not explain the reason behind Ms. Sanders’s denial without first consulting

State Farm’s internal claim file—a file not included within the denial letter or

available to Defendant:

Q Ms. Davis, if I had called you in your capacity as it’s

listed on this letter in 2021, 2022, and asked you why it

was denied, and you indicated to me that it was this section

of the coverage that was being applied to determine that

“no coverage” existed. And my question to you would’ve

been what information is linking that policy to this claim?

And my question was, would you be able to make that

determination or answer my question based on this letter,

or would you have to seek outside help or look in the claim

file, or go somewhere else for that information?

A No. I -- I don’t know. I’m not -- I don’t know ‘cause -- I

don’t know.

Q Okay. In the event that you did have to look at the claim

file, like you mentioned earlier, where might you have

looked? What do you mean by claim file? Can you elaborate

- 37 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

a bit?

A So the claim history is what I would need to go through,

‘cause, gain, I did not have any handling on these claims. I

-- so I don’t know. I would need to go through the notes to

see if it was something additional; if you’re asking me

additional questions.

Further, Ms. Sanders—the drafter of the denial letter—could not provide a

concrete explanation of why coverage was denied when asked during her deposition.

In fact, Ms. Sanders stated that she denied Defendant’s claim based on a different

exclusion than what was described in the denial letter:

Q. Okay. So my question is: When you say, “Since the

damage sustained falls within this exclusionary language,

we regret we can make no payment as a result of this loss,”

which of those two sections that contain exclusionary

language are you applying to deny coverage?

MR. SCOTT LEWIS: Objection. Asked and answered. You

can go on, Adrienne. Answer it.

A. Well, I’ll just answer it again. The – I’m applying

coverage and the -- the damage sustained, based on my

investigation, did not meet the definition of “collapse.” And

so I, again, put in Section 1 - Exclusions to address

everything that was brought to my attention.

Q. And I agree that you’ve answered questions that result

in that answer. My question’s more specific. It has do with

where you say in the end here that, “Since the damage

sustained falls within this exclusionary language,” what

exclusionary language are you talking about in that

sentence?

A. For the basis of the denial, the language in Collapse,

c.(1), (2), (3).

The denial letter cites Exclusions Section B(c)(3), whereas Ms. Sanders testified that

- 38 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

Defendant’s claim was excluded under Additional Coverages Collapse Section

E(8)(c)(1)–(3).

Accordingly, the trial court correctly denied summary judgment for State Farm

on Defendant’s individual UDTPA counterclaim since a genuine issue of material fact

remains as to how State Farm’s subsection 58-63-15(11)(n) violation proximately

caused Defendant’s injury. See Sunbelt Rentals, 174 N.C. App. at 62, 620 S.E.2d at

232 (“Under the UDTPA, proximate cause is a question of fact.”). We hold the trial

court did not err by denying summary judgment on Defendant’s individual UDTPA

counterclaim against State Farm.

2. RestorePro’s Quantum Meruit and Unjust Enrichment Claim

Defendant asserts the trial court erroneously granted partial summary

judgment for RestorePro, on the issue of liability, with respect to RestorePro’s

“quantum meruit/unjust enrichment” claim. Defendant maintains that such a result

“runs contrary to well-settled law” since, in theory, RestorePro could recover against

Defendant under the theories of unjust enrichment and breach of contract at trial.

Alternatively, Defendant argues there is a genuine issue of material fact with respect

to each element of RestorePro’s unjust enrichment claim.

The second enumerated conclusion in the trial court’s order granted summary

judgment on RestorePro’s unjust enrichment claim. “Quantum meruit is a measure

of recovery for the reasonable value of services rendered in order to prevent unjust

enrichment.” Paul L. Whitfield, P.A. v. Gilchrist, 348 N.C. 39, 42, 497 S.E.2d 412,

- 39 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

414 (1998). “Unjust enrichment is ‘a claim in quasi contract or a contract implied in

law.’” Butler v. Butler, 239 N.C. App. 1, 7, 768 S.E.2d 332, 336 (2015) (quoting Booe

v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556 (1988)). “A quasi contract or a

contract implied in law is not a contract.” Whitfield, 348 N.C. at 42, 497 S.E.2d at

415 (quoting Booe, 322 N.C. at 570, 369 S.E.2d at 556).

“The doctrine of unjust enrichment was devised by equity to exact the return

of, or payment for, benefits received under circumstances where it would be unfair

for the recipient to retain them without the contributor being repaid or compensated.”

Browning, 230 N.C. App. at 542, 750 S.E.2d at 559–60 (2013). However, “[m]ore must

be shown than that one party voluntarily benefited another or his property.” Id. A

prima facie claim for unjust enrichment consists of five elements:

First, one party must confer a benefit upon the other party.

Second, the benefit “must not have been conferred

officiously, that is it must not be conferred by an

interference in the affairs of the other party in a manner

that is not justified in the circumstances.” Third, the

benefit must not be gratuitous. Fourth, the benefit must

be measurable. Last, “the defendant must have

consciously accepted the benefit.”

Id. at 541–42, 750 S.E.2d at 559 (citations omitted). But “the doctrine unjust

enrichment . . . will not apply here where a contract exists between two parties.”

Town of Forest City v. Florence Redevelopment Partners, LLC, 292 N.C. App. 86, 97,

896 S.E.2d 653, 660 (2024)).

Here, Defendant’s challenge to the trial court’s grant of summary judgment on

- 40 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

unjust enrichment is grounded in the concern of double recovery: “should

RestorePro[] prevail on its breach of contract claim at trial, it could recover against

Simpson for both unjust enrichment and breach of contract[.]” While we largely

disagree with Defendant’s precise concern, this portion of the trial court’s order must

be reversed because it creates a logical inconsistency. The trial court granted partial

summary judgment for RestorePro “for quantum meruit/unjust enrichment as to

liability,” leaving the question of damages outstanding for trial. Yet, the trial court

also denied summary judgment on RestorePro’s claim for breach of contract—

allowing this claim to proceed to trial as well. As pled by RestorePro, both the claims

of breach of contract and unjust enrichment concern the same subject matter—the

nonpayment for services performed, asbestos testing. The scope of the Contract

between RestorePro and Defendant is ripe for the factfinder. See Paradigm Park

Holdings, LLC v. Glob. Growth Holdings, Inc., 298 N.C. App. 64, 73, 914 S.E.2d 20,

27 (2025) (citation modified) (“The focus in the quantum meruit context is on whether

there is an express contract on the subject matter at issue and not on whether there

was a contract between the parties.”); see also Whitfield v. Gilchrist, 348 N.C. 39, 42,

497 S.E.2d 412, 415 (1998) (citation omitted) (“Only in the absence of an express

agreement of the parties will courts impose a quasi-contract or contract implied in

law in order to prevent unjust enrichment.”). Since the trial court had already

determined a genuine issue of material fact exists as to RestorePro’s breach of

contract claim, it cannot grant summary judgment on RestorePro’s unjust

- 41 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

enrichment claim—an equitable claim. See Town of Forest City v. Florence

Redevelopment Partners, LLC, 292 N.C. App. 86, 97, 896 S.E.2d 653, 660 (2024) (“The

doctrine of unjust enrichment is based on quasi-contract or contract implied in law

and thus will not apply here where a contract exists between two parties.”).

Accordingly, we reverse the trial court’s granting of summary judgment on

RestorePro’s unjust enrichment claim.

3. Defendant’s Breach of Contract Claim

State Farm asserts the trial court erroneously denied its motion for summary

judgment on Defendant’s breach of contract counterclaim. Within its counterclaim,

Defendant noted “[t]he conduct of State Farm . . . violates the implied covenant of

good faith and fair dealing in the Policy.” State Farm contends that in the insurance

context, claims for breach of contract and breach of the implied covenant of good faith

and fair dealing are distinct, are not dependent upon one another, and provide

different remedies. State Farm asserts the trial court ruling is erroneous because

Defendant “cannot prove that State Farm committed the tort of bad faith refusal to

settle her claim with the requisite aggravation.”

“In every contract there is an implied covenant of good faith and fair dealing

that neither party will do anything which injures the right of the other to receive the

benefits of the agreement.” Heron Bay Acquisition, LLC v. United Metal Finishing,

Inc., 245 N.C. App. 378, 385, 781 S.E.2d 889, 894 (2016) (citation and quotation marks

omitted) (quoting Bicycle Transit Authority v. Bell, 314 N.C. 219, 228, 333 S.E.2d 299,

- 42 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

305 (1985)). “Where parties have executed a written contract, an action for ‘breach

of the covenant of good faith and fair dealing is part and parcel of a claim for breach

of contract.’” Ballard, 714 F. Supp. 3d at 644 (citation omitted).

Here, Defendant’s responsive pleading asserted a breach of contract

counterclaim against State Farm. The contract that was alleged to have been

breached was the homeowner’s insurance agreement between State Farm and

Defendant. Defendant alleged that State Farm materially breached the insurance

agreement by “failing and refusing to indemnify [her] for the damages sustained to

the dwelling, contents, and loss of use.” Defendant added that State Farm denied her

the benefits of her homeowner’s insurance policy, which she had paid and was

entitled to. Within that portion of Defendant’s pleading, she noted: “The conduct of

State Farm as alleged . . . also violated the implied covenant of good faith and fair

dealing in the Policy.” State Farm contests the trial court’s conclusion of law because,

in Defendant’s prayer for relief, Defendant requested “punitive damages against

RestorePro and State Farm in an amount to be proven at trial[.]”

Our review leads us to conclude that the trial court did not err by denying State

Farm’s motion for summary judgment on Defendant’s breach of contract

counterclaim. That is, there remains a genuine issue of material fact as to whether

State Farm breached their contract with Defendant, and whether State Farm’s

refusal to perform under the contract was “because of a legitimate, ‘honest

disagreement’” as to the claim’s validity. Cf. Ballard, 714 F. Supp. 3d at 644

- 43 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

(citations omitted); Goldsmith, 359 F. Supp. 3d at 314 (“Legitimate and honest

disagreement over the scope of coverage under an insurance contract does not amount

to bad faith.”).

Accordingly, we hold the trial court correctly denied State Farm’s motion for

summary judgment on Defendant’s claim for breach of contract, which included an

implied covenant of good faith and fair dealing since genuine issues of material fact

remain to be resolved. However, to resolve any ambiguities, we vacate the following

language in the order: “The Breach of Contract counterclaim includes a claim for

breach of the implied covenant of good faith and fair dealing and such claim survives

summary judgment as well.”

IV. Conclusion

For the above reasons, we hold the trial court did not abuse its discretion by

denying Defendant’s motion to compel discovery from State Farm. Moreover, we hold

the trial court did not err by: granting summary judgment for RestorePro and State

Farm on Defendant’s joint UDTPA counterclaim; granting summary judgment for

RestorePro on Defendant’s individual UDTPA counterclaim; denying summary

judgment on Defendant’s individual UDTPA counterclaim against State Farm; and

denying summary judgment for State Farm on Defendant’s breach of contract

counterclaim. We therefore affirm these provisions in the trial court’s order.

Nevertheless, we vacate a portion of the order pertaining to the implied covenant of

good faith and fair dealing. Further, since we hold the trial court erred in granting

- 44 -

RESTOREPRO RECONSTRUCTION, INC. V. SIMPSON

Opinion of the Court

summary judgment for RestorePro on its “quantum meruit/unjust enrichment” claim,

this portion of the order is reversed.

AFFIRMED IN PART; VACATED IN PART; REVERSED IN PART.

Judges STROUD and MURRY concur.

Report per Rule 30(e).

- 45 -