{ "id": 11867774, "name": "RONALD G. HINSON ELECTRIC, INC., Plaintiff-Appellant v. UNION COUNTY BOARD OF EDUCATION, Defendant-Appellee", "name_abbreviation": "Ronald G. Hinson Electric, Inc. v. Union County Board of Education", "decision_date": "1997-02-18", "docket_number": "No. COA96-512", "first_page": "373", "last_page": "379", "citations": [ { "type": "official", "cite": "125 N.C. App. 373" } ], "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": "230 S.E.2d 159", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "161" } ], "opinion_index": 0 }, { "cite": "31 N.C. App. 463", "category": "reporters:state", "reporter": "N.C. 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App. 169", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523206 ], "year": 1992, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc-app/108/0169-01" ] }, { "cite": "205 S.E.2d 721", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 590", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565902, 8565936, 8565872, 8565975, 8565848 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0590-03", "/nc/285/0590-04", "/nc/285/0590-02", "/nc/285/0590-05", "/nc/285/0590-01" ] }, { "cite": "204 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "21 N.C. App. 313", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555796 ], "year": 1974, "pin_cites": [ { "page": "315" } ], "opinion_index": 0, "case_paths": [ "/nc-app/21/0313-01" ] }, { "cite": "274 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 201", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564415 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0201-01" ] }, { "cite": "268 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "48 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549317 ], "year": 1980, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc-app/48/0135-01" ] }, { "cite": "344 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 474", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523807 ], "year": 1986, "pin_cites": [ { "page": "477-478" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0474-01" ] } ], "analysis": { "cardinality": 758, "char_count": 14540, "ocr_confidence": 0.762, "pagerank": { "raw": 1.1543565439106977e-07, "percentile": 0.5821123162006743 }, "sha256": "7eb4193a1fc71983163effb789e1c6e3b0516afacd3a6c419ae120123fa71484", "simhash": "1:822bdc7e540f1876", "word_count": 2348 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and WALKER concur." ], "parties": [ "RONALD G. HINSON ELECTRIC, INC., Plaintiff-Appellant v. UNION COUNTY BOARD OF EDUCATION, Defendant-Appellee" ], "opinions": [ { "text": "MARTIN, Mark D., Judge.\nPlaintiff Ronald G. Hinson Electric, Inc. (Hinson), appeals from the trial court\u2019s order dismissing its complaint, dissolving a temporary restraining order, denying all other injunctive relief, and awarding defendant Union County Board of Education (the Board) $500 in damages.\nIn mid-October 1995 the Board solicited bids for an addition and renovation of the media centers at New Salem and Wingate elementary schools in Union County, North Carolina (the project). On 26 October 1995, after reviewing the properly submitted bids, the Board awarded the general and mechanical components of the project to prime contractors. No bids for the electrical component of the project were received. The electrical component was subsequently rebid.\nAt the 2 November 1995 bid opening the Board received two electrical bids \u2014 Hinson\u2019s bid in the amount of $126,400, and Spence Electric\u2019s (Spence) bid for $131,000. A third bid, submitted by Sentry Electric (Sentry), was received late and was neither opened nor considered. At some point after the bids were opened, Frank Williams (Williams), project architect, allegedly engaged in an ex parte conversation with a representative of Sentry who indicated \u201ctheir price would have been under $100,000.\u201d\nWilliams subsequently reported to the Board that he believed the 2 November bids were too high. The Board, based on William\u2019s recommendation, rejected the 2 November bids and re-opened the bidding for the electrical component of the project.\nAt the 21 November 1995 bid opening the Board received three bids: Hinson re-submitted its bid of $126,400 under protest; Spence submitted a bid of $121,800; and Sentry submitted a bid of $109,700. Based on the 21 November bids, the Board awarded the electrical component of the project to Sentry.\nOn 11 December 1995 Hinson filed a complaint seeking declaratory and injunctive relief and obtained a temporary restraining order preventing the Board from entering a contract for the electrical component of the project. The Board filed, along with its answer, a motion to dismiss Hinson\u2019s complaint for failure to state a claim upon which relief can be granted.\nOn 18 December 1995 the trial court, after hearing, dismissed Hinson\u2019s complaint, dissolved the temporary restraining order, denied any further injunctive relief, and awarded the Board $500 in damages.\nOn appeal Hinson contends, among other things, the trial court erred by (1) dismissing Hinson\u2019s complaint, (2) dissolving Hinson\u2019s temporary restraining order and denying its motion for a preliminary injunction, and (3) awarding damages to the Board.\nAt the outset we note our review is limited to the \u201crecord on appeal and the verbatim transcript of proceedings . . . .\u201d N.C.R. App. P. 9(a); Cellu Products Co. v. G.T.E. Products Corp., 81 N.C. App. 474, 477-478, 344 S.E.2d 566, 568 (1986). A party\u2019s brief is not a part of the record on appeal. West v. Reddick, Inc., 48 N.C. App. 135, 137, 268 S.E.2d 235, 236 (1980), rev\u2019d on other grounds, 302 N.C. 201, 274 S.E.2d 221 (1981). Furthermore, it is the responsibility of each party to ensure the record on appeal clearly sets forth evidence favorable to that party\u2019s position. Produce Corp. v. Covington Diesel, 21 N.C. App. 313, 315, 204 S.E.2d 232, 234, cert. denied, 285 N.C. 590, 205 S.E.2d 721 (1974); Drouillard v. Keister Williams Newspaper Services, 108 N.C. App. 169, 173, 423 S.E.2d 324, 327 (1992), disc, review denied and appeal dismissed, 333 N.C. 344, 427 S.E.2d 617 (1993). The Board failed to include certain exhibits presented to the trial court in the record on appeal. Accordingly, we cannot consider those portions of the exhibits not included in the record.\nI.\nHinson first contends the trial court erred by granting the Board\u2019s motion to dismiss. Specifically, Hinson argues N.C. Gen. Stat. \u00a7 143-129 required the Board to award the electrical component of the project to Hinson.\nDuring the 18 December hearing, the trial court was presented with, and considered, matters outside the pleadings. The Board\u2019s motion to dismiss must therefore \u201cbe treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in G.S. 1A-1, Rule 56.\u201d Roach v. City of Lenoir, 44 N.C. App. 608, 609, 261 S.E.2d 299, 300 (1980). When ruling on a motion for summary judgment, the evidence must be considered in the light most favorable to the non-moving party. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 63, 414 S.E.2d 339, 342 (1992). The motion should be granted only if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Id. at 62, 414 S.E.2d at 341.\nChapter 143, Article 8 of the General Statutes governs the award of public contracts in North Carolina. Section 143-129 generally requires, among other things, that competitive bidding be used for \u201cconstruction or repair work requiring the estimated expenditure of public money in an amount equal to or more than one hundred thousand dollars ($100,000)_\u201d N.C. Gen. Stat. \u00a7 143-129(a) (1995).\nIn addition, section 143-129 also prescribes the following:\nProposals shall not be rejected for the purpose of evading the provisions of this Article. . . .\nAll proposals shall be opened in public and shall be recorded on the minutes of the board or governing body and the award shall be made to the lowest responsible bidder or bidders, taking into consideration quality, performance, and the time specified in the proposals for the performance of the contract.\nN.C. Gen. Stat. \u00a7 143-129(b) (emphasis added).\nN.C. Gen. Stat. \u00a7 143432(a), on the other hand, provides in pertinent part:\n[I]f after advertisement for bids as required by G.S. 143-129, not as many as three competitive bids have been received from reputable and qualified contractors regularly engaged in their respective lines of endeavor, said board . . . shall again advertise for bids; and if as a result of such second advertisement, not as many as three competitive bids from reputable and qualified contractors are received, such board or governing body may then let the contract to the lowest responsible bidder submitting a bid for such project, even though only one bid is received.\nId. (1995) (emphasis added).\nDespite Hinson\u2019s contention section 143-129 controls, we believe the more specific provisions of N.C. Gen. Stat. \u00a7 143432(a) govern resolution of the instant action. See Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969) (\u201c[i]t is a well established principle of statutory construction that a section of a statute dealing with a specific situation controls, with respect to that situation, other sections which are general in their application.\u201d); Food Stores v. Board of Alcoholic Control, 268 N.C. 624, 628-629, 151 S.E.2d 582, 586 (1966) (same).\nAs a general rule, \u201cwhen the word \u2018may\u2019 is used in a statute, it will be construed as permissive and not mandatory.\u201d In re Hardy, 294 N.C. 90, 97, 240 S.E.2d 367, 372 (1978). The plain language of section 143-132 thus vested the Board with broad discretion to accept or reject any number, or all, of the 2 November bids. See Mullen v. Louisburg, 225 N.C. 53, 60, 33 S.E.2d 484, 488 (1945) (\u201c \u2018It is a general rule that officers of a municipal corporation, in the letting of municipal contracts, perform not merely ministerial duties but duties of a judicial and discretionary nature, and that courts, in the absence of fraud or a palpable abuse of discretion, have no power to control their action.\u2019 \u201d) (citations omitted); Kinsey Contracting Co. v. City of Fayetteville, 106 N.C. App. 383, 384, 416 S.E.2d 607, 608, disc. review denied, 332 N.C. 345, 421 S.E.2d 149 (1992). See also 64 Am. Jur. 2d Public Works and Contracts \u00a7 76 (1972); A. Fleming Bell, II, Construction Contracts with North Carolina Local Governments, 23-25 (3d ed. 1996).\nThe statutory discretion accorded local boards or governing bodies, however, is not without limitation. Indeed, the purpose of the public contract bidding laws is \u201cto prevent favoritism, corruption, fraud, and imposition in the awarding of public contracts by giving notice to prospective bidders and thus assuring competition which in turn guarantees fair play and reasonable prices in contracts involving the expenditure of a substantial amount of public money.\u201d Mullen, 225 N.C. at 58-59, 33 S.E.2d at 487.\nHinson contends the Board\u2019s decision to re-bid the electrical component of the project based upon William\u2019s recommendation\u2014 after the alleged ex parte communication between Williams and Sentry \u2014 constituted favoritism and an abuse of discretion by the Board. According to the affidavit of Ronald G. Hinson:\nOn or about November 10, 1995,1 telephoned Frank Williams, the architect for the Union County School Board project to renovate media centers at the New Salem and Wingate Elementary Schools. I asked Mr. Williams why he was recommending a rebid for the electrical component of the Project after my low bid was received on November 2, 1995. Mr. Williams told me that he had spoken with a representative of Sentry Electric and Mr. Williams told me that if he had opened Sentry\u2019s bid, \u201ctheir price would have been under $100,000.\u201d\nThis evidence, viewed in the light most favorable to the non-moving party, raises a genuine issue of material fact as to the propriety of the exercise of the Board\u2019s discretion in rejecting Hinson\u2019s bid. Accordingly, the trial court erred by granting summary judgment in favor of the Board.\nII.\nHinson next contends the trial court erred by dissolving the temporary restraining order and denying Hinson\u2019s motion for a preliminary injunction.\nIn its 18 December order, the trial court granted summary judgment to the Board and, as a consequence, summarily denied Hinson\u2019s motion for a preliminary injunction. Because we reverse the trial court\u2019s grant of summary judgment, we also reverse the trial court\u2019s denial of Hinson\u2019s motion for a preliminary injunction and remand for reconsideration in light of our disposition.\nIII.\nHinson also contends the trial court erred by awarding the Board $500 in damages, the full amount of the bond securing Hinson\u2019s restraining order.\nRule 65(e) of the North Carolina Rules of Civil Procedure provides:\nAn order or judgment dissolving an injunction or restraining order may include an award of damages against the party procuring the injunction . . . without a showing of malice or want of probable cause in procuring the injunction. The damages may be determined by the judge, or he may direct that they be determined by a referee or jury.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 65(e) (1990).\nHinson argues the trial court\u2019s finding of fact number seventeen is unsupported by competent evidence in the record. Finding of fact number seventeen provides:\n17. [The Board] sustained damages in the amount of SEVEN HUNDRED FIFTY DOLLARS ($750.00). These damages are the direct result of the restraining order issued on 11 December 1995.\nIt is well settled the trial court\u2019s findings of fact are conclusive on appeal if supported by competent evidence in the record. Institution Food House v. Circus Hall of Cream, 107 N.C. App. 552, 556, 421 S.E.2d 370, 372 (1992). The present record indicates the trial court relied upon the unsworn statement of counsel that the Board suffered \u201cabout seven fifty\u201d in damages in making finding of fact number seventeen. Such statements by a party\u2019s attorney at trial are not considered evidence. Huss v. Huss, 31 N.C. App. 463, 466, 230 S.E.2d 159, 161 (1976). Thus, as finding of fact seventeen was not based on competent evidence, the corresponding conclusions of law are likewise erroneous. Accordingly, we reverse the trial court\u2019s award of damages.\nFinally, after carefully reviewing Hinson\u2019s remaining assignments of error, we conclude they are wholly without merit.\nReversed and remanded with instructions.\nJudges LEWIS and WALKER concur.", "type": "majority", "author": "MARTIN, Mark D., Judge." } ], "attorneys": [ "Jordan, Price, Wall, Gray & Jones, L.L.P., by Henry W. Jones, Jr., and A. Hope Derby, for plaintiff-appellant.", "Koy E. Dawkins, P.A., by Koy E. Dawkins and Steven D. Starnes, for defendant-appellee." ], "corrections": "", "head_matter": "RONALD G. HINSON ELECTRIC, INC., Plaintiff-Appellant v. UNION COUNTY BOARD OF EDUCATION, Defendant-Appellee\nNo. COA96-512\n(Filed 18 February 1997)\n1. Public Works and Contracts \u00a7 47 (NCI4th)\u2014 renovation of elementary school media centers \u2014 electrical work \u2014 ex parte communications \u2014 bidding reopened \u2014 summary judgment for Board erroneous\nThe trial court erred by granting summary judgment in favor of the Board of Education and by denying the plaintiffs motion for a preliminary injunction in an action seeking declaratory and injunctive relief arising from electrical bids for the renovation of the media centers at two elementary schools where the Board had received three bids on 2 November, the third was received late and was not opened, plaintiffs was the lower of the two bids opened, the project architect allegedly engaged in an ex parte conversation with a representative of the company with the late bid and learned that their bid would have been substantially less, the architect reported to the Board that he believed the bids were too high, the bidding was reopened, and the third company was awarded the electrical component of the work. The trial court was presented with and considered matters outside the pleadings, converting the Board\u2019s motion to dismiss into a motion for summary judgment. The specific provisions of N.C.G.S. \u00a7 143-132(a) govern this action over N.C.G.S. \u00a7 143-129, and the plain language of N.C.G.S. \u00a7 143-132 vested the Board with broad discretion to accept or reject any number, or all, of the 2 November bids. However, the statutory discretion accorded local boards or governing bodies is not without limitation, and the evidence, viewed in the light most favorable to the non-moving party, raises a genuine issue of material fact as to the propriety of the exercise of the Board\u2019s discretion.\nAm Jur 2d, Public Works & Contracts \u00a7\u00a7 54 et seq.\n2. Injunctions \u00a7 43 (NCI4th)\u2014 restraining order dissolved\u2014 damages \u2014 unsworn statement of counsel \u2014 not evidence\nThe trial court erred in awarding damages in dissolving a restraining order by relying upon the unsworn statement of counsel. Such statements by a party\u2019s attorney at trial are not considered evidence.\nAm Jur 2d, Injunctions \u00a7\u00a7 323 et seq.\nAppeal by plaintiff from order signed 18 December 1995 by Judge H. W. Zimmerman, Jr., in Union County Superior Court. Heard in the Court of Appeals 15 January 1997.\nJordan, Price, Wall, Gray & Jones, L.L.P., by Henry W. Jones, Jr., and A. Hope Derby, for plaintiff-appellant.\nKoy E. Dawkins, P.A., by Koy E. Dawkins and Steven D. Starnes, for defendant-appellee." }, "file_name": "0373-01", "first_page_order": 411, "last_page_order": 417 }