Winkler v. N.C. State Bd. of Plumbing, Heating & Fire Sprinkler Contractors

IN THE SUPREME COURT OF NORTH CAROLINA

No. 319PA18

Filed 5 June 2020

DALE THOMAS WINKLER, and DJ’S HEATING SERVICE

v.
NORTH CAROLINA STATE BOARD OF PLUMBING, HEATING & FIRE
SPRINKLER CONTRACTORS

On discretionary review pursuant to N.C.G.S. § 7A-31 of a unanimous decision

of the Court of Appeals, 261 N.C. App, 106, 819 S.E.2d 105 (2018), reversing an order

entered on 15 May 2017 by Judge Edwin G. Wilson in Superior Court, Watauga

County. On 14 August 2019, the Supreme Court allowed defendant’s conditional

petition for discretionary review as to additional issues. Heard in the Supreme Court

on 6 January 2020.

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.

BEASLEY, Chief Justice.
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Opinion of the Court

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 N.C.G.S. § 6-19.1 does not preclude a trial court from

awarding attorney’s fees in disciplinary actions by a licensing board, we modify and

affirm the holding below.

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

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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 N.C.G.S. § 87-21 did not grant

the Board jurisdiction to discipline Winkler for conducting the pool heater inspection.

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Opinion of the Court

Winkler v. State Bd. of Exam’rs of Plumbing, Heating & Fire Sprinklers Contractors

(Winkler I), 249 N.C. App. 578, 599, 790 S.E.2d 727, 739 (2016). The Court of Appeals

vacated the portion of the Board’s order relating to Winkler’s inspection of the pool

heater and remanded the case to the Board for entry of a new order based on other

misconduct.

On 24 October 2016, Winkler filed a motion for attorney’s fees and costs in

Superior Court, Watauga County, pursuant to N.C.G.S. §§ 6-19.1 and 6-20, arguing

that the Board knew or should have known that it lacked authority to discipline him

for the pool heater inspection. The trial court entered an order awarding Winkler

$29,347.47 in attorney’s fees and costs. The Board appealed the order and moved to

stay the order awarding attorney’s fees and costs pending appeal.

The Court of Appeals ultimately held that the trial court erred in awarding

Winkler attorney’s fees pursuant to N.C.G.S. § 6-19.1 because, when read as a whole,

the statute excludes cases arising out of the defense of a disciplinary action by a

licensing board. Winkler v. N.C. State Bd. of Plumbing, Heating & Fire Sprinkler

Contractors (Winkler II), 261 N.C. App. 106, 114, 819 S.E.2d 105, 110–11 (2018). We

disagree.

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

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Opinion of the Court

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:

(1) The court finds that the agency acted without
substantial justification in pressing its claim against
the party; and

(2) The court finds that there are no special
circumstances that would make the award of
attorney’s fees unjust.

N.C.G.S. § 6-19.1(a) (2019).

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).

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Opinion of the Court

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 N.C.G.S. § 6-19.1, we conclude that the statute is

ambiguous.

The disputed language of N.C.G.S. § 6-19.1 is contained in the first half of the

statute which reads that “[i]n 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 . . . .” Both

parties argue that the grammatical structure of the statute supports only their own

interpretation of the statute and precludes that of their opponent, and the Court of

Appeals relied heavily on the placement of commas and indefinite articles for its

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interpretation.

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

punctuation or usage error. Thus, while we typically discuss statutory ambiguity in

terms of the provision being equally susceptible of multiple interpretations, we see

the opposite problem here—from a grammatical perspective, the provision at issue is

equally unsusceptible of each proposed interpretation.

It is undisputed that the introductory phrase of N.C.G.S. § 6-19.1(a) sets out a

broad category of actions—“any civil action”—in which, upon proper findings, the

trial court may award attorney’s fees. Likewise, everyone agrees that the clause

immediately following the introductory phrase, which is set off by a pair of commas,

delineates a subcategory of civil actions that are excluded from the provision—“an

adjudication for the purpose of establishing or fixing a rate.” The dispute in the

instant case arises over the function of the next clause, which is also set off by a pair

of commas, and reads as follows: “or a disciplinary action by a licensing board.” There

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are two possible interpretations. Either the statute contains two broad categories of

actions in which attorney’s fees may be awarded—civil actions and disciplinary

actions by licensing boards—or it contains two subcategories of civil actions excluded

from the provision allowing the trial court to award attorney’s fees—rate-fixing

actions and disciplinary actions by licensing boards.

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

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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

N.C.G.S. § 6-19.1(a) contains a series of three commas: “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 . . . .” If the clauses related to establishing or fixing a rate and disciplinary

actions are to be read as performing the same grammatical function within the

sentence—i.e., modifying the phrase “any civil action”—the comma separating them

is entirely superfluous.

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

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Opinion of the Court

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—

and possibly all—of the first three commas in N.C.G.S. § 6-19.1(a) are misplaced.

Because no interpretation of the statute is free from grammatical error, no

plain meaning emerges from the language of N.C.G.S. § 6-19.1(a). Thus, we cannot

rely on rules of grammar to guide us through our analysis. Typically, where the plain

language of a statute is equally susceptible of multiple interpretations, we must

attempt to discern the legislative intent behind the words in order to interpret the

statute. Here, however, although the sentence is from a grammatical perspective

equally incorrect in each interpretation, we nonetheless find the General Assembly

could not have intended to except disciplinary actions by a licensing board from the

category of civil actions because such disciplinary actions are not civil in nature.

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.” N.C.G.S. § 1-2 (2019) (emphasis added). Disciplinary actions by licensing

boards are administrative proceedings held before a board or commission, which

creates its own regulations and enforces compliance upon certificate holders and

licensees. Upon finding that there has been a violation, administrative agencies

choose between several possible remedies, including suspension or revocation of the

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certificate or license. See, e.g., N.C.G.S. § 87-23 (2019). Neither the creation nor the

initial enforcement of administrative regulations occurs before a “court of justice.”

See Ocean Hill Joint Venture v. N.C. Dep’t of Env’t, Health & Nat. Res., 333 N.C. 318,

321, 426 S.E.2d 274, 276 (1993) (observing that although “[a]rticle IV, section 3 of the

Constitution contemplates that discretionary judicial authority may be granted to an

agency when reasonably necessary to accomplish the agency’s purposes[,]. . . . an

agency so empowered is not a part of the ‘general court of justice’ ” (first quoting In

the Matter of Appeal from the Civil Penalty Assessed for Violations of the SPCA, 324

N.C. 373, 379, 379 S.E.2d 30, 34 (1989); then quoting N.C. Const. art. IV § 2). Thus,

proceedings before administrative agencies, including disciplinary actions by a

licensing board, are not civil actions.

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 N.C.G.S.

§ 150B-43 (1991))).

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

N.C.G.S. § 6-19.1(a), which contains an explicit exception to the statute. Specifically,

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the statute provides that “[n]othing in this section shall be deemed to authorize the

assessment of attorney’s fees for the administrative review portion of the case in

contested cases arising under Article 9 of Chapter 131E of the General Statutes.” Not

only does this language convey an intent to allow the award of attorney’s fees for

administrative hearings, but it also shows that, if it had intended to do so, the

legislature could have explicitly excepted Article 3A from the provisions of N.C.G.S.

§ 6-19.1.

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.

The Administrative Procedure Act contains multiple articles and covers

different types of proceedings. Administrative actions that become subject to judicial

review have both administrative and judicial components. Disciplinary proceedings

before licensing boards—like the one that is before us in this case—are covered by

Article 3A of Chapter 150B of the North Carolina General Statutes. Under our

interpretation of N.C.G.S. § 6-19.1, the separate reference to disciplinary proceedings

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found in that statutory provision authorizes awards of attorney’s fees for both phases

of such a proceeding. On the other hand, the provision authorizing attorney’s fee

awards in administrative proceedings conducted pursuant to Article 3 of Chapter

150B applies to a different set of cases, with the relevant language serving to

authorize attorney’s fee awards in both the administrative and judicial components

of such proceedings, given that the judicial review portion is covered by the statutory

reference to “civil actions” and the administration portion is covered by the additional

language expressly authorizing fee awards in the administrative portion of such

proceedings. For this reason, the interpretation of N.C.G.S. § 6-19.1 that we deem

appropriate in this case does not render the statutory reference to the administrative

portion of cases arising under Article 3 of Chapter 150B “useless or redundant.”

Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. at 556, 276 S.E.2d at 447

(stating that the court should construe the statute so that “none of its provisions shall

be rendered useless or redundant”).

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

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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 N.C.G.S.

§ 6-19.1 for abuse of discretion. See High Rock Lake Partners, LLC v. N.C. Dep’t of

Transp., 234 N.C. App. 336, 338, 760 S.E.2d 750, 753 (2014) (“By the clear language

of the statute, once the trial court makes the appropriate findings required in

subsections (1) and (2) of N.C.G.S. § 6-19.1(a), its decision on whether or not to award

attorney’s fees is discretionary.”). “To show an abuse of discretion and reverse the

trial court’s order[, the] appellant has the burden to show the trial court’s rulings are

‘manifestly unsupported by reason,’ or ‘could not be the product of a reasoned

decision.’ ” Id. at 340, 760 S.E.2d at 753 (quoting Nationwide Mut. Fire Ins. Co. v.

Bourlon, 172 N.C. App. 595, 610, 617 S.E.2d 40, 50 (2005)).

The purpose of N.C.G.S. § 6-19.1 is to “curb unwarranted, ill supported suits

initiated by State agencies,” by requiring that the State’s action be substantially

justified. Crowell Constructors v. State ex rel. Cobey, 342 N.C. 838, 844, 467 S.E.2d

675, 679 (1996). This standard is not so stringent that the agency must “demonstrate

the infallibility of each suit it initiates” or even prevail in the action. Id. Nor is the

standard so lax that the State may avoid liability for attorney’s fees by demonstrating

merely that its suit is not frivolous. Id. (quoting Pierce v. Underwood, 487 U.S. 552,

566, 108 S. Ct. 2541, 2550 (1988)). Rather, this Court has adopted “a middle-ground

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objective standard to require the agency to demonstrate that its position, at and from

the time of its initial action, was rational and legitimate to such degree that a

reasonable person could find it satisfactory or justifiable in light of the circumstances

then known to the agency.” Id.

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 authority of the Board ‘in order to protect

the public health, comfort and safety.’ ” Winkler I, 249 N.C. App. at 591, 790 S.E.2d

at 735.

Specifically, N.C.G.S. § 87-23(a) grants the Board authority to do the following:

[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.

N.C.G.S. § 87-23(a) (2019) (emphasis added).

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

1Following the events giving rise to this case, the statute was amended to include any
person who “verifies, inspects, evaluates, tests, installs, alters or restores” plumbing or
heating devices or offers to perform those services. N.C.G.S. § 87-21(a)(5) (2019).

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installations, alterations, or restorations. N.C.G.S. § 87-21(a)(5) (2017). The terms

“install,” “alter” and “restore” were not defined in the statute. The term “restore” can

mean a number of things, including “to put or bring back into existence or use” or “to

bring back to or to put back into a former or original state.” Restore, Merriam-

Webster’s Online Dictionary, https://www.merriam-webster.com/dictionary/restore

(last visited May 26, 2020). The Board argued that Winkler’s actions with regard to

the pool heater were consistent with this definition.

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

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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 N.C.G.S. § 6-19.1, because there was substantial

justification for the Board’s claims.

MODIFIED AND AFFIRMED.

2 Because the Board acted with substantial justification, we need not consider whether
special circumstances existed that would make the award of attorney’s fees unjust.

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