{ "id": 11915373, "name": "H.B.S. CONTRACTORS, INC., Plaintiff-Appellant/Appellee v. CUMBERLAND COUNTY BOARD OF EDUCATION, Defendant-Appellee/Appellant", "name_abbreviation": "H.B.S. Contractors, Inc. v. Cumberland County Board of Education", "decision_date": "1996-03-19", "docket_number": "No. COA95-898", "first_page": "49", "last_page": "58", "citations": [ { "type": "official", "cite": "122 N.C. App. 49" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "35 ALR4th 810", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "5 ALR4th 574", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "322 S.E.2d 594", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "598", "parenthetical": "attorney's fees can be awarded under section 1988 to a party that has been successful on a significant issue in the case" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 366", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525325 ], "year": 1984, "pin_cites": [ { "page": "371", "parenthetical": "attorney's fees can be awarded under section 1988 to a party that has been successful on a significant issue in the case" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0366-01" ] }, { "cite": "417 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500290, 2499842, 2497925, 2497100, 2502519 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0284-03", "/nc/331/0284-01", "/nc/331/0284-02", "/nc/331/0284-04", "/nc/331/0284-05" ] }, { "cite": "412 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "896" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521963 ], "weight": 2, "pin_cites": [ { "page": "195-196" }, { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0191-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-19.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7\u00a7 1988", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "pin_cites": [ { "page": "352", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "632 F.2d 316", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1416887 ], "year": 1980, "pin_cites": [ { "page": "350", "parenthetical": "applying \"merits test\" to 42 U.S.C. \u00a7\u00a7 1988 and 2000(e)-5(k), statutory provisions which limit the award of attorney's fees to \"prevailing\" parties" } ], "opinion_index": 0, "case_paths": [ "/f2d/632/0316-01" ] }, { "cite": "412 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "330 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2511313, 2508242, 2508118, 2508667, 2510653 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0193-01", "/nc/330/0193-05", "/nc/330/0193-02", "/nc/330/0193-04", "/nc/330/0193-03" ] }, { "cite": "405 S.E.2d 914", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "920" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521091 ], "year": 1991, "pin_cites": [ { "page": "405" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0396-01" ] }, { "cite": "104 L. Ed. 2d 1027", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "490 U.S. 1110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605344, 605440, 605303, 605284, 604996, 606028, 605552, 605715, 605876, 605086, 605077, 605879, 604885, 604955, 605598 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/us/490/1110-15", "/us/490/1110-10", "/us/490/1110-01", "/us/490/1110-07", "/us/490/1110-11", "/us/490/1110-03", "/us/490/1110-02", "/us/490/1110-13", "/us/490/1110-04", "/us/490/1110-05", "/us/490/1110-12", "/us/490/1110-09", "/us/490/1110-06", "/us/490/1110-14", "/us/490/1110-08" ] }, { "cite": "368 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "322 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2514703 ], "year": 1988, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0251-01" ] }, { "cite": "448 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551555, 2551689, 2552697, 2552187, 2550815 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0694-01", "/nc/337/0694-05", "/nc/337/0694-02", "/nc/337/0694-04", "/nc/337/0694-03" ] }, { "cite": "444 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "490" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 283", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127010 ], "year": 1994, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0283-01" ] }, { "cite": "324 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "833" } ], "opinion_index": 0 }, { "cite": "312 N.C. 770", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4755941 ], "year": 1985, "pin_cites": [ { "page": "777" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0770-01" ] }, { "cite": "451 S.E.2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)" } ], "opinion_index": 0 }, { "cite": "338 N.C 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519209, 2520269, 2519598, 2518574, 2519998 ], "year": 1994, "pin_cites": [ { "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/338/0309-05", "/nc/338/0309-02", "/nc/338/0309-03", "/nc/338/0309-01", "/nc/338/0309-04" ] }, { "cite": "444 S.E.2d 451", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "453", "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)" } ], "opinion_index": 0 }, { "cite": "115 N.C. App. 303", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127274 ], "year": 1994, "pin_cites": [ { "page": "307", "parenthetical": "quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/115/0303-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-318", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "opinion_index": 0 }, { "cite": "162 S.E. 730", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "pin_cites": [ { "page": "731", "parenthetical": "\"meaning of [an ambiguous] word may be ascertained by reference to the meaning of words with which it is associated.\"" } ], "opinion_index": 0 }, { "cite": "202 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626151 ], "year": 1932, "pin_cites": [ { "page": "323", "parenthetical": "\"meaning of [an ambiguous] word may be ascertained by reference to the meaning of words with which it is associated.\"" } ], "opinion_index": 0, "case_paths": [ "/nc/202/0321-01" ] }, { "cite": "174 S.E.2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "622" } ], "opinion_index": 0 }, { "cite": "8 N.C. App. 452", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552713 ], "year": 1970, "pin_cites": [ { "page": "456" } ], "opinion_index": 0, "case_paths": [ "/nc-app/8/0452-01" ] }, { "cite": "452 S.E.2d 807", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2519559, 2521484, 2518991, 2520368, 2517306 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0514-04", "/nc/338/0514-02", "/nc/338/0514-03", "/nc/338/0514-05", "/nc/338/0514-01" ] }, { "cite": "447 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "475" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 215", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523140 ], "year": 1994, "pin_cites": [ { "page": "220" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0215-01" ] }, { "cite": "442 S.E.2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "336 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539559 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/336/0284-01" ] }, { "cite": "83 S.E.2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "788" } ], "opinion_index": 0 }, { "cite": "240 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609216 ], "year": 1954, "pin_cites": [ { "page": "684-685" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0680-01" ] }, { "cite": "417 S.E.2d 818", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "822", "parenthetical": "\" 'If it appears by extraneous evidence or from the nature of a transaction . . . [the communications] were made for the purpose of being conveyed by the attorney to others, they. .. are not privileged.' \" (quoting Dobias v. White, 240 N.C. 680, 684-685, 83 S.E.2d 785, 788 (1954))" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5314416 ], "year": 1992, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0606-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "439 S.E.2d 607", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "609" }, { "page": "609", "parenthetical": "plaintiff is prevailing party because it succeeded on only claim for relief - a declaration defendant violated the Open Meetings Law" } ], "opinion_index": 0 }, { "cite": "113 N.C. App. 127", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520891 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "130" }, { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc-app/113/0127-01" ] }, { "cite": "317 S.E.2d 684", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "686" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 341", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526283 ], "year": 1984, "pin_cites": [ { "page": "344" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0341-01" ] }, { "cite": "392 S.E.2d 90", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307491, 5309577, 5305754, 5307317, 5307610 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0482-02", "/nc/326/0482-01", "/nc/326/0482-05", "/nc/326/0482-04", "/nc/326/0482-03" ] }, { "cite": "386 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "614" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 516", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523387 ], "year": 1989, "pin_cites": [ { "page": "523" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0516-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "page": "(a)(3)" }, { "page": "(a)", "parenthetical": "emphasis added" }, { "page": "(a)(3)" } ], "opinion_index": 0 }, { "cite": "314 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "567-568" } ], "opinion_index": 0 }, { "cite": "68 N.C. App. 252", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526971 ], "year": 1984, "pin_cites": [ { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/nc-app/68/0252-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-318.9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "pin_cites": [ { "parenthetical": "public policy of this State requires that \"hearings, deliberations, and actions of [public bodies] be conducted openly,\" because public bodies \"exist solely to conduct the people's business\"" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1008, "char_count": 22143, "ocr_confidence": 0.74, "pagerank": { "raw": 4.6637275979087637e-07, "percentile": 0.9276855523237069 }, "sha256": "ba2e0d478a647e1aa4a2275be841751a1b42e4d2c07cf0bc6bb1797353f169c7", "simhash": "1:bfed415e364b2f72", "word_count": 3524 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EAGLES and MARTIN, John C., concur." ], "parties": [ "H.B.S. CONTRACTORS, INC., Plaintiff-Appellant/Appellee v. CUMBERLAND COUNTY BOARD OF EDUCATION, Defendant-Appellee/Appellant" ], "opinions": [ { "text": "MARTIN, Mark D., Judge.\nDefendant Cumberland County Board of Education (Board) appeals from the trial court\u2019s declaration that the Board violated the Open Meetings Law, N.C. Gen. Stat. \u00a7 143-318.9, et seq.; and plaintiff H.B.S. Contractors (HBS) appeals from the trial court\u2019s subsequent refusal to declare the Board\u2019s order terminating HBS\u2019 contract null and void.\nAt the outset we note N.C.R. App. P. 28(j) requires that briefs filed in this Court be \u201cformatted according to Rule 26 and . . . limited to 35 pages of text....\u201d N.C.R. App. P. 28(j). Under Rule 26(g) \u201c[a]ll printed matter must appear in at least 11 point type ....\u201d N.C.R. App. P. 26(g). Accordingly, where printed matter within a brief is not at least 11 point type, the appeal is subject to dismissal. N.C.R. App. P. 25(b); Wiseman v. Wiseman, 68 N.C. App. 252, 255, 314 S.E.2d 566, 567-568 (1984).\nIn the present case, the brief filed on behalf of H.B.S. does not comply with Rule 26(g). Nevertheless, in the interests of justice, we waive the present violation pursuant to N.C.R. App. P. 2 and address the merits.\nOn 25 June 1993 HBS entered into a construction contract (Contract) with the Board in which HBS agreed to build Federal Site No. 1 Elementary School (Project). On 18 November 1994 Michael Boose, Chairman of the Board, calendared an emergency meeting for 23 November 1994. On 21 November 1994 Maynette Regan (Regan), legal counsel for the Board, sent a letter to Herbert H. Thorp (Thorp), counsel for HBS, stating that no HBS attorney \u201cwas to communicate or cause another to communicate with the Board\u201d regarding the project.\nAt the 23 November emergency meeting, the Board unanimously passed a motion to enter closed session, pursuant to N.C. Gen. Stat. \u00a7 143-318.11(a)(3), \u201cto discuss a legal matter.\u201d The minutes of the closed session indicate the only non-Board members present were attorney Regan, Tim H. Kinlaw (Kinlaw), Assistant Superintendent of Operations with responsibility for school construction projects, and Superintendent John Griffin.\nKinlaw advised the Board: the project was severely behind schedule; the project was undermanned; the Department of Environment, Health, and Natural Resources was citing the Board for inadequate sedimentation control measures at the project; the project had some unresolved construction issues; and there was a possibility of damage claims from the other prime contractors. The Board was also provided a report prepared by Dan MacMillan, the project architect, certifying that grounds for termination existed. After considering this information, the Board voted in closed session to terminate the contract. Kinlaw, acting at the Board\u2019s direction, informed HBS in writing that the contract was terminated.\nOn 4 January 1995 HBS instituted a declaratory judgment action seeking a declaration that the Board\u2019s termination of the contract violated the Open Meetings Law and that the termination order was null and void. On 1 March 1995 the trial court entered a judgment concluding the Board violated the Open Meetings Law. Nonetheless, after a plenary hearing and considering all relevant factors, the trial court refused to void the termination order.\nOn appeal HBS and the Board raise a myriad of contentions which can be consolidated into four issues \u2014 (1) whether the trial court erred in concluding the Board violated the Open Meetings Law by terminating the contract in a closed session; (2) whether the trial court erred by failing to declare the termination order null and void because of overriding policy considerations; (3) whether the trial court erred by admitting attorney Thorp\u2019s affidavit despite his continued representation of HBS; and (4) whether HBS is entitled to an award of attorney\u2019s fees.\nInitially we note, \u201c[although [this Court] may not question [findings of] fact... which are supported by [competent] evidence, we are not bound by the conclusions or inferences drawn by the trial court.\u201d Howell v. Landry, 96 N.C. App. 516, 523, 386 S.E.2d 610, 614 (1989), disc. review denied, 326 N.C. 482, 392 S.E.2d 90 (1990). Further, \u201c[i]f [a] finding of fact is essentially a conclusion of law, [] it will be treated as a conclusion of law which is [fully] reviewable on appeal.\u201d Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C. App. 341, 344, 317 S.E.2d 684, 686 (1984).\nI.\nWe first consider whether the Board\u2019s decision to terminate the contract in closed session violated the Open Meetings Law.\nN.C. Gen. Stat. \u00a7 115C-4 provides that school boards must comply with the Open Meetings Law, Jacksonville Daily News Co. v. Onslow County Bd. of Education, 113 N.C. App. 127, 130, 439 S.E.2d 607, 609 (1993), which, as a general rule, requires public bodies to hold official meetings in open session so the public can attend, N.C. Gen. Stat. \u00a7 143-318.10(a) (Cum. Supp. 1995). See also N.C. Gen. Stat. \u00a7 143-318.9 (1993) (public policy of this State requires that \u201chearings, deliberations, and actions of [public bodies] be conducted openly,\u201d because public bodies \u201cexist solely to conduct the people\u2019s business\u201d). In fact, public bodies are allowed to enter closed sessions \u201conly when required to permit [them] to act in the public interest... .\u201d N.C. Gen. Stat. \u00a7 143-318.11(a) (Cum. Supp. 1995) (emphasis added).\nSection 143-318.11(a)(3) establishes it is \u201cin the public interest\u201d to close a meeting which is held:\n(3) To consult with an attorney employed or retained by the public body in order to preserve the attorney-client privilege between the attorney and the public body.... General policy matters may not be discussed in a closed session and nothing herein shall be construed to permit a public body to close a meeting that otherwise would be open merely because an attorney ... is a participant. The public body may consider and give instructions to an attorney concerning the handling or settlement of a claim, judicial action, or administrative procedure.\nN.C. Gen. Stat. \u00a7 143-318.11(a)(3). In the present case the Board contends the challenged closed session was to preserve attorney-client confidences, or, in the alternative, any instructions given to attorney Regan concerned the \u201chandling or settlement of . . . [an] administrative procedure.\u201d\nClearly, the Board\u2019s order to terminate the contract does not fall under the protective umbrella of the attorney-client privilege as it must be divulged to, at a minimum, HBS. See Scott v. Scott, 106 N.C. App. 606, 612, 417 S.E.2d 818, 822 (1992) (\u201c \u2018If it appears by extraneous evidence or from the nature of a transaction . . . [the communications] were made for the purpose of being conveyed by the attorney to others, they. .. are not privileged.\u2019 \u201d (quoting Dobias v. White, 240 N.C. 680, 684-685, 83 S.E.2d 785, 788 (1954))), aff'd, 336 N.C. 284, 442 S.E.2d 493 (1994). See also 81 Am. Jur. 2d Witnesses \u00a7 378 (1992).\nAs the attorney-client exception is inapplicable to the present case, we now consider whether issuing a termination order is an \u201cadministrative procedure.\u201d To resolve this contention we must necessarily refer to well established canons of statutory construction.\n\u201cIf statutory language is clear and unambiguous, judicial construction is unnecessary and the plain and definite meaning of the statute controls.\u201d Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 220, 447 S.E.2d 471, 475, disc. review denied, 338 N.C. 514, 452 S.E.2d 807 (1994). In any event, \u201c[a] word of a statute may not be interpreted out of context but must be [read] as . . . part of the composite whole... .\" Desk Co. v. Clayton, Comr. of Revenue, 8 N.C. App. 452, 456, 174 S.E.2d 619, 622 (1970). See also Morecock v. Hood, 202 N.C. 321, 323, 162 S.E. 730, 731 (1932) (\u201cmeaning of [an ambiguous] word may be ascertained by reference to the meaning of words with which it is associated.\u201d); 73 Am. Jur. 2d Statutes \u00a7 213 (1974) (courts should consider \u201cthe meaning naturally attaching . . . from the context, and adopt that sense of the word[] which best harmonizes with the context).\nIn the present case, the Board argues \u201cadministrative procedure\u201d should be interpreted to include even the most trivial clerical or managerial orders. Not only would this interpretation be wholly inconsistent with the legislative intent behind the Open Meetings Law \u2014 to promote openness in the daily workings of public bodies \u2014 it would also superimpose an overly broad definition of \u201cadministrative procedure\u201d which is clearly inconsistent with the overall context of the statute. Therefore, we conclude, \u201cadministrative procedure,\u201d as used in section 318.11(a)(3), refers only to administrative proceedings instituted under this State\u2019s Administrative Procedure Act, N.C. Gen. Stat. \u00a7 150B-1, et seq., and does not include mere clerical or managerial instructions to terminate a contract.\nWe also note Chairman Boose testified the Board has a policy of entering closed session: (1) to avoid embarrassment of the individual or entity under discussion; (2) to discuss quality of performance; (3) to talk about specifics; and (4) to enable Board members to better express themselves. Our reading of section 318.11(a) does not reveal an exception to the Open Meetings Law premised on any of these considerations. Indeed, we believe it apparent the General Assembly intended the Open Meetings Law to curtail exactly this type of unwarranted secrecy by public bodies.\nAccordingly, we affirm the trial court\u2019s declaration that the Board violated the Open Meetings Law by terminating its contract with HBS in closed session.\nII.\nBecause the Board violated the Open Meetings Law by terminating the contract during closed session, we now determine if the trial court erred by failing to void the termination order pursuant to N.C. Gen. Stat. \u00a7 143-318.16A.\nWhen a public body violates the Open Meetings Law, the trial court \u201cmay declare any such action null and void.\u201d N.C. Gen. Stat. \u00a7 143-318.16A(a) (1993). The decision to void a challenged action is committed to the sound discretion of the trial court and, therefore, \u201ccan be reversed on appeal only if the decision is \u2018manifestly unsupported by reason\u2019 and \u2018so arbitrary that it could not have been the result of a reasoned decision.\u2019 \u201d Dockside Discotheque v. Bd. of Adjustment of Southern Pines, 115 N.C. App. 303, 307, 444 S.E.2d 451, 453, disc. review denied, 338 N.C 309, 451 S.E.2d 634 (1994) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)) (citations omitted). In making this discretionary ruling, the trial corut must consider six statutory, and any other relevant, factors. N.C. Gen. Stat. \u00a7 143-318.16A(c).\nHBS argues the trial court improperly considered the fifth statutory factor \u2014 \u201c[t]he extent to which persons-relied upon the validity of the challenged action, and the effect on such persons of declaring the challenged action void,\u201d N.C. Gen. Stat. \u00a7 143-318.16A(c)(5) \u2014 -by failing to limit \u201cpersons,\u201d in this case, to the surety, replacement contractors, or similarly situated entities.\nAs the paramount objective in statutory interpretation is to give effect to the legislative intent, McLeod v. Nationwide Mutual Ins. Co., 115 N.C. App. 283, 288, 444 S.E.2d 487, 490, disc. review denied, 337 N.C. 694, 448 S.E.2d 528 (1994), we decline to adopt the narrow reading proposed by HBS because we believe it neglects the overriding intent behind the Open Meetings Law \u2014 public bodies should act in open session because they serve the public-at-large. N.C. Gen. Stat. \u00a7 143-318.9. Rather, we believe the interpretation applied by the trial court \u2014 \u201cpersons\u201d includes any citizen of the State whose interests will be affected by voiding the Board\u2019s action \u2014 best effectuates the legislative intent.\nFurther, we believe, after careful review of the present record, that the trial court did not abuse its discretion by declining to void the Board\u2019s action. Accordingly, although we may have reached a different conclusion than the trial court, we must uphold the trial court\u2019s ruling. Cf. State v. Jackson, 322 N.C. 251, 257, 368 S.E.2d 838, 841 (1988), cert. denied, 490 U.S. 1110, 104 L. Ed. 2d 1027 (1989).\nIII.\nWe next consider the Board\u2019s allegation the trial court erred by admitting the affidavit of Herbert Thorp, counsel for HBS, over the Board\u2019s objection, without requiring attorney Thorp to withdraw from representation pursuant to Rule 5.2 of the North Carolina Rules of Professional Conduct.\nAssuming, without deciding, the trial court erred, a remedy is nonetheless unavailable to the Board unless it can establish the error was prejudicial and, without the error, a different result would likely have ensued. Boyd v. L. G. DeWitt Trucking Co., 103 N.C. App. 396, 405, 405 S.E.2d 914, 920, disc. review denied, 330 N.C. 193, 412 S.E.2d 53 (1991).\nHere the trial court admitted the Thorp affidavit into evidence before ruling \u2014 in the Board\u2019s favor \u2014 that the termination order should remain in effect. Clearly, exclusion of the Thorp affidavit could not result in a more favorable ruling for the Board and, accordingly, we find no prejudicial error.\nIV.\nFinally, we consider whether the trial court erred by awarding attorney\u2019s fees to HBS under N.C. Gen. Stat. \u00a7 143-318.16B.\nSection 318.16B provides, in pertinent part:\nWhen an action is brought pursuant to . . . G.S. 143-318.16A, the court may make written findings specifying the prevailing party . . . and mav award the prevailing party . . . reasonable attorney\u2019s fee.\nN.C. Gen. Stat. \u00a7 143-318.16B (Cum. Supp. 1995) (emphasis added). Put simply, the issue for this Court is whether HBS prevailed where it established a violation of the Open Meetings Law and the trial court, nonetheless, subsequently refused to declare the Board\u2019s action void.\nWe note this Court recently addressed the award of attorney\u2019s fees under the superseded version of section 143-318.16B. Jacksonville Daily News, 113 N.C. App. at 131, 439 S.E.2d at 609 (plaintiff is prevailing party because it succeeded on only claim for relief \u2014 a declaration defendant violated the Open Meetings Law). Nevertheless, Jacksonville is inapposite to the present case as HBS succeeded on some, but not all, of its claims.\nWhen, as here, a plaintiff only succeeds on some of its claims, the Fourth Circuit applies the \u201cmerits test\u201d to determine if plaintiff is a \u201cprevailing party.\u201d Smith v. University of North Carolina, 632 F.2d 316, 350 (4th Cir. 1980) (applying \u201cmerits test\u201d to 42 U.S.C. \u00a7\u00a7 1988 and 2000(e)-5(k), statutory provisions which limit the award of attorney\u2019s fees to \u201cprevailing\u201d parties). Under the merits test, \u201cto receive attorney\u2019s fees allowed by statute to the prevailing party, a party must prevail on the merits of at least some of his claims.\u201d Id. at 352 (emphasis added). This Court has also adopted the merits test as the proper standard for awarding attorney\u2019s fees to \u201cprevailing\u201d parties pursuant to N.C. Gen. Stat. \u00a7 6-19.1. House v. Hillhaven, Inc., 105 N.C. App. 191, 195-196, 412 S.E.2d 893, 896 (\u201cpersons may be considered prevailing parties for the purposes of attorney\u2019s fees if they succeeded on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing the suit.\u201d), disc. review denied, 331 N.C. 284, 417 S.E.2d 251 (1992). See also Miller v. Henderson, 71 N.C. App. 366, 371, 322 S.E.2d 594, 598 (1984) (attorney\u2019s fees can be awarded under section 1988 to a party that has been successful on a significant issue in the case).\nWe note the operative language \u2014 \u201cprevailing party\u201d \u2014 in the federal statutes and N.C. Gen. Stat. \u00a7 6-19.1 is identical to that found in N.C. Gen. Stat. \u00a7 143-318.16B. Therefore, we believe the question of whether HBS is a \u201cprevailing party\u201d under section 143-318.16B should be resolved by application of the merits test. Consequently, we must examine the benefits sought by HBS in its complaint versus those actually obtained and, thereby, determine if HBS \u201csucceedfed] on any significant issue in the litigation which achieves some of the benefit the parties sought in bringing the suit.\u201d Hillhaven, 105 N.C. App. at 196, 412 S.E.2d at 896.\nIn Hillhaven plaintiffs forwarded a myriad of claims. For example, plaintiffs sought a declaratory judgment finding the State violated N.C. Gen. Stat. \u00a7\u00a7 131E-129 and 131E-126; and issuing preliminary and permanent injunctions requiring proper monitoring of the conditions at the nursing home. Plaintiffs did not succeed on these issues. In fact, plaintiffs lost every substantive issue presented to the trial court. This Court concluded, after \u201cweighing the benefits sought by plaintiffs against the recovery obtained . . . that plaintiffs have not succeeded on any significant issue which brought about the results plaintiffs were seeking.\u201d Id. at 197, 412 S.E.2d at 897.\nIn the present case, HBS sought a declaration the Board violated the Open Meetings Law and the Board\u2019s termination order was null and void. The trial court: (1) granted HBS\u2019 motion for summary judgment and concluded the Board violated the Open Meetings Law; (2) imposed a permanent injunction on the Board which prohibits it from \u201cconsidering the performance of independent contractors or taking votes on the issue of the termination of independent contractors\u201d in closed sessions; and (3) determined, in an exercise of its discretion, that the Board\u2019s termination order should not be declared null and void.\nAfter careful review of the present record, we conclude HBS succeeded, at least in part, by securing a declaration the Board violated the Open Meetings Law. By establishing that violation, HBS prevailed on the primary legal question in its cause of action which, in our estimation, is \u201ca significant success.\u201d In fact, only the trial court\u2019s subsequent ancillary ruling to leave the termination order intact precluded HBS from obtaining everything in its prayer for relief. Therefore, we conclude HBS is a \u201cprevailing party,\u201d and, accordingly, affirm the trial court\u2019s grant of reasonable attorney\u2019s fees to HBS.\nWe have carefully reviewed the remaining assignments of error and conclude they are without merit.\nAffirmed.\nJudges EAGLES and MARTIN, John C., concur.", "type": "majority", "author": "MARTIN, Mark D., Judge." } ], "attorneys": [ "Thorp and Clark, by Herbert H. Thorp and Matthew R. Plyler, and Lee and Lee, by W. Osborne Lee, Jr., for plaintiff - appellant/appellee.", "Womble Carlyle Sandridge & Rice, PLLC, by Elizabeth L. Riley, for defendant-appellee/appellant." ], "corrections": "", "head_matter": "H.B.S. CONTRACTORS, INC., Plaintiff-Appellant/Appellee v. CUMBERLAND COUNTY BOARD OF EDUCATION, Defendant-Appellee/Appellant\nNo. COA95-898\n(Filed 19 March 1996)\n1. Schools \u00a7 16 (NCI4th)\u2014 closed session \u2014 termination of building contract \u2014 no attorney-client privilege \u2014 no \u201cadministrative procedure\u201d \u2014 violation of Open Meetings Law\nDefendant board of education\u2019s decision to terminate a construction contract in closed session violated the Open Meetings Law where the board contended the challenged closed session was to preserve attorney-client confidences, or, in the alternative, any instructions given to the attorney concerned the \u201chandling or settlement of . . . [an] administrative procedure,\u201d but the board\u2019s order to terminate the contract did not fall under the protective umbrella of the attorney-client privilege as it would have to be divulged, at a minimum, to plaintiff contractor, and \u201cadministrative procedure,\u201d as used N.C.G.S. \u00a7 143-318.11(a)(3), refers only to administrative proceedings instituted under this State\u2019s Administrative Procedure Act and does not include mere clerical or managerial instructions to terminate a contract.\nAm Jur 2d, Schools \u00a7 61.\n2. Schools \u00a7 16 (NCI4th)\u2014 violation of Open Meetings Law\u2014 action allowed to stand \u2014 consideration of statutory factors \u2014 interpretation of \u201cperson\u201d proper\nThe trial court did not abuse its discretion in declining to void defendant board of education\u2019s termination of a construction contract during a closed session held in violation of the Open Meetings Law, and there was no merit to plaintiff\u2019s contention that the trial court improperly considered the fifth factor of N.C.S.G. \u00a7 143-318.16A(c) \u2014 \u201c[t]he extent to which persons relied upon the validity of the challenged action, and the effect on such persons of declaring the challenged action void\u201d \u2014 by failing to limit \u201cpersons\u201d in this case to the surety, replacement contractors, or similarly situated entities, since the interpretation applied by the trial court that \u201cpersons\u201d included any citizen of the State whose interests will be affected by voiding the Board\u2019s action best effectuated the legislative intent.\nAm Jur 2d, Schools \u00a7 61.\n3. Evidence and Witnesses \u00a7 2593 (NCI4th)\u2014 alleged error\u2014 no better result if \u201cerror\u201d not committed\nEven if the trial court erred in admitting the affidavit of plaintiff\u2019s counsel over defendant\u2019s objection without requiring the attorney to withdraw from representation, defendant was not prejudiced where the exclusion of the affidavit could not have resulted in a more favorable ruling for defendant.\nAm Jur 2d, Witnesses \u00a7\u00a7 225-241.\nDisqualification of attorney because member of his firm is or ought to be a witness in case \u2014 modern cases. 5 ALR4th 574.\nAttorney as witness for client in civil proceedings\u2014 modern state cases. 35 ALR4th 810.\nAttorney as witness for client in federal case. 9 ALE Fed. 500.\n4. Costs \u00a7 37 (NCI4th)\u2014 plaintiff prevailing on same claims\u2014 plaintiff as prevailing party \u2014 award of attorney fees proper\nPlaintiff was a prevailing party and the trial court therefore did not err in awarding attorney\u2019s fees to plaintiff under N.C.G.S. \u00a7 143-318.16B where plaintiff sought a declaration that defendant board of education violated the Open Meetings Law and that defendant\u2019s termination of a construction contract was null and void; the trial court found that defendant violated the Open Meetings Law but allowed the termination to stand; plaintiff thus prevailed on the primary legal question in its cause of action; and plaintiff thus met with \u201csignificant success.\u201d\nAm Jur 2d, Costs \u00a7\u00a7 57-70.\nAppeal by plaintiff and defendant from judgment entered 1 March 1995 by Judge Coy E. Brewer, Jr., in Cumberland County Superior Court. Heard in the Court of Appeals 30 January 1996.\nThorp and Clark, by Herbert H. Thorp and Matthew R. Plyler, and Lee and Lee, by W. Osborne Lee, Jr., for plaintiff - appellant/appellee.\nWomble Carlyle Sandridge & Rice, PLLC, by Elizabeth L. Riley, for defendant-appellee/appellant." }, "file_name": "0049-01", "first_page_order": 85, "last_page_order": 94 }