{ "id": 8236209, "name": "JAMES RIVER EQUIPMENT, INC., Plaintiff v. THARPE'S EXCAVATING, INC., JEFFREY W. THARPE, MECKLENBURG UTILITIES, INC. and ORANGE COUNTY BOARD OF EDUCATION, Defendants", "name_abbreviation": "James River Equipment, Inc. v. Tharpe's Excavating, Inc.", "decision_date": "2006-09-05", "docket_number": "No. COA05-79", "first_page": "336", "last_page": "347", "citations": [ { "type": "official", "cite": "179 N.C. App. 336" } ], "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": "601 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12631682 ], "year": 2004, "pin_cites": [ { "page": "324" } ], "opinion_index": 0, "case_paths": [ "/se2d/601/0319-01" ] }, { "cite": "166 N.C. App. 129", "category": "reporters:state", "reporter": "N.C. 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Stat.", "weight": 2, "year": 1973, "opinion_index": 0 }, { "cite": "129 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1925, "pin_cites": [ { "page": "579", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "190 N.C. 250", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600100 ], "year": 1925, "pin_cites": [ { "page": "255", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/190/0250-01" ] }, { "cite": "259 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1979, "pin_cites": [ { "page": "367" }, { "page": "368" }, { "page": "366" }, { "page": "448" }, { "page": "367" } ], "opinion_index": 0 }, { "cite": "43 N.C. App. 444", "category": "reporters:state", "reporter": "N.C. 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App. 347", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552479 ], "weight": 2, "year": 1974, "pin_cites": [ { "page": "348" }, { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc-app/20/0347-01" ] }, { "cite": "164 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "81" } ], "opinion_index": 0 }, { "cite": "3 N.C. App. 39", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552629 ], "year": 1968, "pin_cites": [ { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc-app/3/0039-01" ] }, { "cite": "577 S.E.2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "parenthetical": "emphasis addded" } ], "opinion_index": 0 }, { "cite": "357 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491506 ], "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0046-01" ] }, { "cite": "567 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "786" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 240", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249808 ], "year": 2002, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0240-01" ] }, { "cite": "310 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "334" } ], "opinion_index": 0 }, { "cite": "310 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2402735 ], "year": 1983, "pin_cites": [ { "page": "86" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0075-01" ] }, { "cite": "553 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "91" }, { "parenthetical": "internal citation omitted" } ], "opinion_index": 0 }, { "cite": "146 N.C. App. 370", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11357693 ], "year": 2001, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0370-01" ] }, { "cite": "518 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1999, "pin_cites": [ { "page": "788", "parenthetical": "internal citations and quotation marks omitted" }, { "parenthetical": "internal citation, ellipses and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "134 N.C. App. 724", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11143552 ], "year": 1999, "pin_cites": [ { "page": "171", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/134/0169-01" ] }, { "cite": "276 S.E.2d 718", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "722" } ], "opinion_index": 0 }, { "cite": "51 N.C. App. 264", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2646181 ], "year": 1981, "pin_cites": [ { "page": "267" } ], "opinion_index": 0, "case_paths": [ "/nc-app/51/0264-01" ] } ], "analysis": { "cardinality": 1036, "char_count": 27102, "ocr_confidence": 0.758, "pagerank": { "raw": 2.0051066818297018e-07, "percentile": 0.7434464325912438 }, "sha256": "9ea4a5b5cb086a0e9e6a80dd388fe7f55c2451f588ac902db54350deeec08861", "simhash": "1:0ba89532d24ccaf6", "word_count": 4473 }, "last_updated": "2023-07-14T22:27:33.869735+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEVINSON and JACKSON concur." ], "parties": [ "JAMES RIVER EQUIPMENT, INC., Plaintiff v. THARPE\u2019S EXCAVATING, INC., JEFFREY W. THARPE, MECKLENBURG UTILITIES, INC. and ORANGE COUNTY BOARD OF EDUCATION, Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nOn 30 August 2004, the trial court dismissed plaintiff\u2019s tort, contract, and equity claims against defendants Mecklenburg Utilities, Inc., (\u201cMecklenburg\u201d) and the Orange County Board of Education (\u201cthe Board\u201d), with prejudice. Plaintiff appeals. We affirm in part and reverse in part and remand.\nIn 2000, the Board entered a contract with Mecklenburg for grading services for construction of a new high school. Under the contract, Mecklenburg would furnish the payment bond required by state law; Mecklenburg procured a payment bond from Amwest Surety Insurance Company (\u201cthe surety\u201d). Mecklenburg, the general contractor, sub-contracted with Tharpe\u2019s Excavating, Inc., (\u201cTharpe\u2019s\u201d), with Jeffrey W. Tharpe as guarantor, for a portion of the grading work. In turn, Tharpe\u2019s rented equipment from plaintiff, James River Equipment. Tharpe\u2019s failed to pay over $500,000 owed to plaintiff and, in April 2001, plaintiff gave notice of non-payment to the Board, Mecklenburg, and the surety. In June 2001, the surety gave notice to the Board and Mecklenburg that it was insolvent and had been placed in receivership. Mecklenburg did not furnish a replacement bond.\nIn 2002, plaintiff brought this suit against the Board, Mecklenburg, Tharpe\u2019s and Tharpe. Plaintiff\u2019s complaint sets forth the following counts: Count I claims breach of the contract between Tharpe\u2019s and plaintiff; Count II seeks recovery from Tharpe as guarantor of plaintiff\u2019s contract with Tharpe\u2019s; Count III claims a lien on funds held by the Board and Mecklenburg at the time they learned the surety was insolvent; Count IV is a claim of quantum meruit against all defendants; Count V seeks an equitable lien against the Board and Mecklenburg to prevent unjust enrichment; Count VI claims breach of a contract between the Board and Mecklenburg; Count VII against the Board claims breach of warranty; and Count VIII against the Board claims negligence for failure to retain funds. Plaintiff later amended the complaint to add equal protection and due process claims against the Board. Upon motions to dismiss by defendants Mecklenburg and the Board, the trial court dismissed all claims against the Board and Mecklenburg pursuant to Rule 12(b)(6). The trial court also found no just reason for delay of appellate review of the dismissed claims and thus certified the case for appeal pursuant to Rule 54(b). The court did not dismiss the counts against Tharpe\u2019s and Tharpe for breach of contract and guaranty, which were still pending in superior court at the filing of this appeal.\nOrders which do not dispose of the action as to all parties are treated as interlocutory. Cunningham v. Brown, 51 N.C. App. 264, 267, 276 S.E.2d 718, 722 (1981). Ordinarily, there is no right of appeal from an interlocutory order, but interlocutory orders may be appealed in two instances: \u201c(1) if the order is final as to some but not all of the claims or parties and the trial court certifies there is no just reason to delay the appeal pursuant to N.C.R. Civ. P. 54(b) or (2) if the trial court\u2019s decision deprives the appellant of a substantial right which would be lost absent immediate review.\u201d CBP Resources, Inc. v. Mountaire Farms, Inc., 134 N.C. App. 169, 171, 517 S.E.2d 151, 153 (1999) (internal quotation marks omitted); N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b) (2001); N.C. Gen. Stat. \u00a7 l-277(a) (2001); N.C. Gen. Stat. \u00a7 7A-27(c) (2001).\nIn its brief, James River has included a statement of grounds for appellate review, as required by Rule 28(b)(4). N.C. R. App. P. 28(b)(4) (2004). When the Supreme Court amended Rule 28(b) in 2001, it added subsection 4, which reads in its entirety as follows:\nSuch statement shall include citation of the statute or statutes permitting appellate review. When an appeal is based on Rule 54(b) of the Rules of Civil Procedure, the statement shall show that there has been a final judgment as to one or more but fewer than all of the claims or parties and that there has been a certification by the trial court that there is no just reason for delay. When an appeal is interlocutory, the statement must contain sufficient facts and argument to support appellate review on the ground that the challenged order affects a substantial fight.\nId. We read this rule as requiring that, when an appeal is from an order which is final as to one party, but not all, and where the trial court has certified the matter under Rule 54(b), we must review the issue. This interpretation is consistent with the Supreme Court\u2019s previous holding that where the trial court issued a Rule 54(b) certification on a final judgment as to one or more party but not all, this Court is required to review the case. DKH Corp. v. Rankin-Patterson Oil Co., Inc., 348 N.C. 583, 585, 500 S.E.2d 666, 668 (1998). Although that decision preceded, and thus did not specifically address, the change in appellate Rule 28(b)(4) issued by the Supreme Court, we conclude that the change in the rule does not alter the binding effect of DKH.\nHowever, we note that when an appeal is from an interlocutory, not final, order as to any party (e.g., one which disposes of some but not all claims against that party), the appellant must include an explanation of why the case affects a substantial right, even if the trial court has certified that there is no just reason for delay. \u201c[T]he trial court\u2019s determination that there is no just reason for delay of appeal, while accorded deference, cannot bind the appellate courts because ruling on the interlocutory nature of appeals is properly a matter for the appellate division, not the trial court.\u201d Anderson v. Atlantic Cas. Ins. Co., 134 N.C. App. 724, 726, 518 S.E.2d 786, 788 (1999) (internal citations and quotation marks omitted). The trial court \u201ccannot by certification make its decree immediately appealable if it is not a final judgment.\u201d Id. (internal citation, ellipses and quotation marks omitted). Here, because the appeal is final as to the Board and Mecklenburg and the trial court certified the appeal, we conclude that we must review plaintiff\u2019s appeal on the merits.\nPlaintiff first argues that the trial court erred in dismissing its claim in Count VI of its complaint, that the Board and Mecklenburg breached their contractual and statutory duty to provide an adequate bond throughout the life of a project. We review the trial court\u2019s grant of a 12(b)(6) motion to dismiss de novo. Grant Constr. Co. v. McRae, 146 N.C. App. 370, 373, 553 S.E.2d 89, 91 (2001). \u201c[T]he question for the court is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.\u201d Id. (internal citation omitted). In reviewing a 12(b)(6) dismissal, we are only concerned with the adequacy of the pleadings, see, e.g., Henry v. Deen, 310 N.C. 75, 86, 310 S.E.2d 326, 334 (1983), which we must construe liberally. Governor\u2019s Club Inc. v. Governors Club Ltd. P\u2019ship, 152 N.C. App. 240, 246, 567 S.E.2d 781, 786 (2002), aff\u2019d, 357 N.C. 46, 577 S.E.2d 620 (2003).\nN.C. Gen. Stat. \u00a7\u00a7 44A-25 through 44A-35 (2003)', commonly known as the Little Miller Act (\u201cthe Act\u201d), governs payment and performance bonds for state construction contracts. Section 44A-26, entitled\n\u201cBonds Required,\u201d states in pertinent part that,\n(a) When the total amount of construction contracts awarded for any one project exceeds three hundred thousand dollars ($ 300,000), a performance and payment bond as set forth in (1) and (2) is required by the contracting body from any contractor or construction manager at risk with a contract more than fifty thousand dollars ($ 50,000).\n***\n(2) A payment bond in the amount of one hundred percent (100%) of the construction contract amount, conditioned upon the prompt payment for all labor or materials for which a contractor or subcontractor is liable. The payment bond shall be solely for the protection of the persons furnishing materials or performing labor for which a contractor, subcontractor, or construction manager at risk is liable.\n(b) The performance bond and the payment bond shall be executed by one or more surety companies legally authorized to do business in the State of North Carolina and shall become effective upon the awarding of the construction contract.\nId. (emphasis addded). Defendants do not dispute that they were required to provide a bond, but assert that they complied with the Act when they, secured a surety that \u201cbecame effective upon the awarding of the construction contract.\u201d However, the statute is silent regarding whether the bond is required for the life of the project and this issue is one of first impression.\nPursuant to fundamental principles of statutory construction, we must first seek to discern the intent of the legislature, and in seeking to ascertain the legislative intent, the statutory language should be construed in context. See Powell v. State Employees\u2019 Retirement System, 3 N.C. App. 39, 41, 164 S.E.2d 80, 81 (1968). In addition, we give consideration to the effect of possible interpretations of the statute, \u201csince a construction that leads to an anomalous or illogical result probably was not intended by the legislature.\u201d Domestic Elec. Service Inc. v. City of Rocky Mount, 20 N.C. App. 347, 348, 201 S.E.2d 508, 509, aff\u2019d, 285 N.C. 135, 203 S.E.2d 838 (1974). In construing a statute, we presume that the legislature acted with care and deliberation. State v. Benton, 276 N.C. 641, 658, 174 S.E.2d 793, 804 (1970). Here, the statute explicitly states that \u201c[t]he payment bond shall be solely for the protection of the persons furnishing materials or performing labor for which a contractor, subcontractor, or construction manager at risk is liable.\u201d N.C. Gen. Stat. \u00a7 44A-26. Our Courts have noted that such statutes provide a surety bond to provide the functional equivalent of a materialmen\u2019s lien, which is available to those engaged in private construction, but not in public construction projects. Carolina Builders Corporation v. AAA Dry Wall, Inc., 43 N.C. App. 444, 448, 259 S.E.2d 364, 367 (1979). Furthermore, we note that the payment bond form included in N.C. Gen. Stat. \u00a7 44A-33(b), provides language indicating that the bond shall \u201cremain in full force and virtue.\u201d Id. We conclude that the bond requirement of N.C. Gen. Stat. \u00a7 44A-26 extends throughout the life of the project; to hold otherwise would fail to afford the protection which the statute explicitly seeks to provide and would \u201clead[] to an anomalous or illogical result probably [] not intended by the legislature.\u201d Domestic Elec. Service, 20 N.C. App. at 348, 201 S.E.2d at 509.\nAlthough we conclude that N.C. Gen. Stat. \u00a7 44A-26 requires that the contracting body and the general contractor provide a payment bond for the life of the project, we also conclude that plaintiff here has no civil remedy against the Board for this alleged violation of the duty to maintain a bond. N.C. Gen. Stat. \u00a7 44A-32 provides that \u201c[e]ach contracting body shall designate an official thereof to require the bonds described by this Article. If the official so designated shall fail to require said bond, he shall be guilty of a Class 1 misdemeanor.\u201d Id. The North Carolina Supreme Court has held that as against a government contracting body,\ncriminal indictment is the only remedy prescribed by the statute, and we must declare the law as we find it. The Legislature alone may change it, if it is thought to be inadequate. Plaintiffs rights and remedies against the defendant board and its members are statutory, and the courts are not at liberty to extend a penal statute, or one of this kind, beyond the clear meaning of its terms. The legislative intent must be the controlling spirit in the construction and application of statutes of this nature.\nNoland Company, Inc., v. Board of Trustees of Southern Pines School, 190 N.C. 250, 255, 129 S.E.2d 577, 579 (1925) (internal citation and quotation marks omitted). In 1979, this Court again held that the statute provides the sole remedy against a government entity for failure to provide the statutorily required bond: misdemeanor prosecution of the designated official responsible for securing the bond. Carolina Builders, 43 N.C. App. at 449, 259 S.E.2d at 368. Although the Little Miller Act was revised by the legislature in 1973, 1993, and 1994, the legislature has not amended the substance of this provision. Accordingly, we conclude that the Board cannot be civilly liable to plaintiff for the failure to provide an adequate payment bond for the life of the project.\nIn claim VI of its complaint, plaintiff also argues that Mecklenburg is liable for failure to provide an adequate bond for the life of the project. Plaintiff was not a party to the contract between the Board and Mecklenburg, and thus seeks recovery as a third-party beneficiary. \u201c[A] third party beneficiary to an agreement may properly maintain an action for its breach, where the agreement is made for the third party\u2019s direct benefit and the benefit accruing to him is not merely incidental.\u201d Woolard v. Davenport, 166 N.C. App. 129, 136, 601 S.E.2d 319, 324 (2004). In Carolina Builders, this Court held that a plaintiff could not recover from the general contractor for failure to secure the statutory bond because it was a \u201cmere incidental beneficiary,\u201d to the contract between the governmental body and the general contractor. 43 N.C. App. at 447, 259 S.E.2d at 366. In so holding, the Court reasoned that, \u201c[n]othing in the record before us suggests that the [governmental body] exacted from [the general contractor] the promise to obtain bonds with the expressed intent to directly benefit third parties such as plaintiff.\u201d Id. at 448, 259 S.E.2d at 367. However, Carolina Builders, involved an earlier version of the statute, N.C. Gen. Stat. \u00a7 44-14 (1973), which simply required public bodies\n[t]o execute bond with one or more solvent sureties before beginning any work under said contract, payable to said county, city, town or other municipal corporation, and conditioned on payment of all labor done on and material and supplies furnished for said work under a contract or agreement made directly with the principal contractor or subcontractor.\nId. As the Act has since been amended, we conclude that we are not bound by Carolina Builders on this issue. Pursuant to N.C. Gen. Stat. \u00a7 44A-26(a)(2), as amended in 1973, the statutory bond requirement of the contract between the Board and Mecklenburg is clearly and explicitly for the direct benefit of laborers and subcontractors such as plaintiff. Thus, the allegations in count VI are sufficient to state a claim on this basis, and we reverse the trial court\u2019s dismissal of this claim as to Mecklenburg.\nIn its next argument, plaintiff argues that the trial court erred in denying plaintiffs motion to reconsider the dismissal of certain of their claims. As to the dismissals we are affirming, we disagree; as to the dismissals we are reversing, we need not address this issue. Plaintiff filed a motion for reconsideration, alleging that it had new information that the Board required Mecklenburg to provide a replacement bond after it learned of the surety\u2019s insolvency, but only for contractors doing work from that point forward, which excluded plaintiff. Plaintiff asserts that this was unequal and arbitrary treatment of subcontractors, in violation of plaintiff\u2019s constitutional rights to Equal Protection and Due Process under the United States and North Carolina Gonstitutions.\nWe review the trial court\u2019s denial of a motion for reconsideration for abuse of discretion and reverse only upon \u201ca showing that [the] ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d Muse v. Charter Hospital of Winston-Salem, Inc., 117 N.C. App. 468, 481, 452 S.E.2d 589, 598, aff'd, 342 N.C. 403, 464 S.E.2d 44 (1995). In denying plaintiff\u2019s motion, the trial court stated that it considered Dobrowolska v. Wall, 138 N.C. App. 1, 530 S.E.2d 590 (2000), which plaintiff cited in support of its constitutional arguments. In Dobrowolska, this Court held that when the City of Greensboro opted to pay damages to some tort claimants in a negligence claim arising from an accident with an off-duty police officer, while asserting governmental immunity against others, it was obligated to \u201ccarry out this custom, or \u2018unwritten\u2019 policy in a way which affords due process to all similarly situated tort claimants with actions against the City.\u201d Id. at 13, 530 S.E.2d at 599. However, Dobrowolksa involved direct payments by the City to some tort claimants and assertions of governmental immunity against others, while here plaintiffs assert failure to provide a statutory replacement bond as to all contractors. The Court\u2019s order indicates that it considered plaintiff\u2019s argument and concluded that equal protection and due process did not apply. Plaintiff has failed to make a \u201cshowing that [the] ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d Muse, 117 N.C. App. at 481, 452 S.E.2d at 598. We overrule this assignment of error.\nPlaintiff also contends in count III that the trial court erred in dismissing its claim that it had a lien on funds in the hands of the Board and Mecklenburg at the time they learned that the surety was insolvent. A materialmen\u2019s lien on funds is a statutory remedy which arises under Article 2 of Chapter 44A of our General Statutes. N.C. Gen. Stat. \u00a7 44A-18(l)-(4) (2004). However, section 44A-34 states that \u201cthis Article shall not be construed as making the provisions of Articles 1 and 2 of Chapter 44A of the General Statutes apply to public bodies or public buildings.\u201d Id. We conclude that the trial court properly dismissed this claim as to the Board. In contrast, Mecklenburg is not a public body, and plaintiff sought a lien against funds, not the public building itself, and we find nothing in the Act which would exclude a private general contractor from the provisions of Article 2. Accordingly, we conclude that the trial court erred in dismissing plaintiff\u2019s claim III for a lien on funds against Mecklenburg. Plaintiff also argues that it was entitled to an equitable lien against both defendants. However, an equitable lien is available only where a party has no adequate remedy at law. Embree Const. Group, Inc., v. Rafcor, Inc., 330 N.C. 487, 491, 411 S.E.2d 916, 920 (1992). Here, plaintiff had claims against Tharpe\u2019s and Tharpe, has a pending contract claim against Mecklenburg, as assignee of Tharpe\u2019s, has recovered funds from the Virginia Treasury, and has claims through the state receivership action for the surety. Thus, we conclude that the trial court did not err in dismissing plaintiff\u2019s claim for an equitable lien.\nPlaintiff next argues that the trial court erred in dismissing its claim, count VIII, that the Board violated its duty of reasonable care to require a payment bond for the protection of subcontractors through the life of the project. As discussed earlier, plaintiff has no civil remedy against the Board for its violation of the duty to maintain a bond. N.C. Gen. Stat. \u00a7 44A-32. We overrule this assignment of error.\nIn its final argument, plaintiff asserts that the trial court erred in dismissing count IV of its complaint, its claim in quantum meruit against the Board and Mecklenburg. As previously discussed, we conclude that plaintiff has no civil remedy against the Board in this action. However, we conclude that the trial court erroneously dismissed plaintiffs quantum meruit claim against Mecklenburg. Plaintiff alleges that Mecklenburg has been unjustly enriched because it received the benefit of the services and materials it provided. \u201cAn implied contract rests on the equitable principle that one should not be allowed to enrich himself unjustly at the expense of another and on the principle that what one ought to do, the law supposes him to have promised to do.\u201d Orange County Water and Sewer Authority v. Town of Carrboro, 58 N.C. App. 676, 683, 294 S.E.2d 757, 761 (1982). \u201cTo recover in quantum meruit, a plaintiff must show that (1) services were rendered to the defendant; (2) the services were knowingly and voluntarily accepted; and (3) the services were not given gratuitously.\u201d Wing v. Town of Landis, 165 N.C. App. 691, 693, 599 S.E.2d 431, 433 (2004). Here, it is undisputed that there was no express contract between plaintiff and Mecklenburg, that plaintiff rented and serviced equipment for grading the school site, and that plaintiff has not been paid. We conclude that plaintiff has alleged a prima facie case for recovery in quantum meruit and that the trial court should not have dismissed this claim pursuant to Rule 12(b)(6).\nFinally, we must address defendants\u2019 cross-assignments of error. The Board and Mecklenburg argue that the trial court erred in denying their Rule 41(b) motions to dismiss for failure to prosecute. We disagree. Plaintiff originally filed its action in March 2002 and subsequently obtained ten alias and pluries summons between the original filing and October 2003. The Board and Mecklenburg moved to dismiss for failure to prosecute pursuant to N.C. Rule. Civ. P. 41(b). N.C. Gen. Stat. \u00a7 1A-1, Rule 41(b) (2003). The trial court denied these motions, finding that \u201calthough the delay in service of the Complaint was substantial and unusual, the delay was not deliberate or for an improper motive or purpose and no material prejudice was caused to either [defendant]... and therefore, both the Defendants\u2019 Motions to Dismiss pursuant to Rule 41 (b) should be denied.\u201d It is well-established that dismissal under Rule 41(b) is left to the sound discretion of the trial court. Smith v. Quinn, 91 N.C. App. 112, 114, 370 S.E.2d 438, 439 (1988), rev\u2019d on other grounds, 24 N.C. 316, 378 S.E.2d 28 (1989). Furthermore, dismissal for failure to prosecute is proper only where the plaintiff manifests an intention to thwart the progress of the action to its conclusion, or by some delaying tactic plaintiff fails to progress the action toward its conclusion. Jones v. Stone, 52 N.C. App. 502, 505, 279 S.E.2d 13, 15, cert. denied, 304 N.C. 195, 285 S.E.2d 99 (1981). Here, our review of the record and transcript indicates that the court considered that plaintiff was engaged in settlement discussion and document gathering, and we conclude that the court\u2019s decision not to dismiss for failure to prosecute was not an abuse of discretion.\nAffirmed in part; reversed in part and remanded.\nJudges LEVINSON and JACKSON concur.", "type": "majority", "author": "HUDSON, Judge." } ], "attorneys": [ "Sands, Anderson, Marks & Miller, by Celie B. Richardson, Elaine R. Jordan and Dailey J. Derr, for plaintiff-appellant.", "Safran Law Offices, by M. Anne Runheim, for defendant-appellee Mecklenburg Utilities, Inc.", "Cheshire & Parker, by D. Michael Parker, for defendant-appellee Orange County Board of Education." ], "corrections": "", "head_matter": "JAMES RIVER EQUIPMENT, INC., Plaintiff v. THARPE\u2019S EXCAVATING, INC., JEFFREY W. THARPE, MECKLENBURG UTILITIES, INC. and ORANGE COUNTY BOARD OF EDUCATION, Defendants\nNo. COA05-79\n(Filed 5 September 2006)\n1. Appeal and Error\u2014 appealability \u2014 interlocutory order\u2014 explanation of substantial right\nWhen an appeal is from an order which is final as to one party, but not all, and the trial court has certified the matter under N.C.G.S. \u00a7 1A-1, Rule 54(b), the Court of Appeals must review the issue, as here. However, when the appeal is from an interlocutory rather than final order as to any party, the appellant must include an explanation of why the case affects a substantial right, even if the trial court has certified that there is no just reason for delay. N.C. Rules of Appellate Procedure, Rule 28(b)(4) (2004).\n2. Construction Claims\u2014 school project \u2014 surety in receivership \u2014 no civil remedy for failure to maintain bond\nThe Orange County Board of Education could not be civilly liable to a subcontractor on a school construction project for failure to provide an adequate payment bond for the life of the project where the surety was placed in receivership. The bond requirement of N.C.G.S. \u00a7 44A-26 is for life of the project, but the remedy is criminal rather than civil. The trial court correctly granted the Board\u2019s motion for dismissal for failure to state a claim upon which relief could be granted.\n3. Construction Claims; Sureties\u2014 surety contract \u2014 for the benefit of laborers and subcontractors\nThe trial court incorrectly granted a Rule 12(b)(6) dismissal for the general contractor on a school construction project where the surety was placed in receivership and a subcontractor brought an action for not maintaining the required bond. Pursuant to N.C.G.S. \u00a7 44A-26(a)(2), as amended, the bond requirement is clearly and explicitly for the direct benefit of laborers and subcontractors such as plaintiff.\n4. Trials\u2014 motion for reconsideration \u2014 plaintiffs argument considered \u2014 no abuse of discretion\nThe trial court did not abuse its discretion by denying a motion for reconsideration in an action by a subcontractor arising from the insolvency of a surety. The court\u2019s order indicated that it considered plaintiff\u2019s argument and concluded that equal protection and due process did not apply.\n5. Construction Claims\u2014 failure of surety \u2014 materialman\u2019s lien against board of education and contractor \u2014 equitable liens\nA materialman\u2019s lien does not apply to public bodies or public buildings and the trial court did not err by dismissing a subcontractor\u2019s claim that it had a lien on funds in the hands of the Board of Education at the time it learned that the surety was insolvent. However, the court erred by dismissing the claim against the general contractor, which is not a public body. The trial court also did not err by dismissing plaintiff\u2019s claim for an equitable lien, which is available only when a party has no adequate remedy at law. Plaintiff has other claims pending.\n6. Construction Claims\u2014 failure of surety \u2014 quantum meruit claims by subcontractor\nA subcontractor did not have a claim in quantum meruit against the Board of Education for not maintaining the statutorily required bond after a surety became insolvent. Under the statute, there is no civil remedy against the Board. However, plaintiff alleged a prima facie case for recovery in quantum meruit against the general contractor and the trial court should not have granted a Rule 12 (b)(6) dismissal of the claim.\n7. Trials\u2014 dismissal for failure to prosecute \u2014 denied\u2014settlement discussions and document gathering\nThe trial court did not abuse its discretion by denying defendants\u2019 motions to dismiss for failure to prosecute where plaintiff filed the action in March of 2002 and subsequently obtained ten alias and pluries summonses between the original filing and October of 2003. The court considered that plaintiff was engaged in settlement discussions and document gathering, and did not abuse its discretion by not dismissing plaintiffs case.\nAppeal by plaintiff from order entered 3 September 2004 by Judge John R. Jolly, Jr., in the Superior Court in Orange County. Heard in the Court of Appeals 1 December 2005.\nSands, Anderson, Marks & Miller, by Celie B. Richardson, Elaine R. Jordan and Dailey J. Derr, for plaintiff-appellant.\nSafran Law Offices, by M. Anne Runheim, for defendant-appellee Mecklenburg Utilities, Inc.\nCheshire & Parker, by D. Michael Parker, for defendant-appellee Orange County Board of Education." }, "file_name": "0336-01", "first_page_order": 368, "last_page_order": 379 }