{ "id": 8237010, "name": "JAMES RIVER EQUIPMENT, INC., Plaintiff v. MECKLENBURG UTILITIES, INC., ORANGE COUNTY BOARD OF EDUCATION and JEFFREY W. THARPE, as Trustee after termination of Tharpe's Excavating, Inc. Defendants", "name_abbreviation": "James River Equipment, Inc. v. Mecklenburg Utilities, Inc.", "decision_date": "2006-09-05", "docket_number": "No. COA05-622", "first_page": "414", "last_page": "420", "citations": [ { "type": "official", "cite": "179 N.C. App. 414" } ], "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": "340 S.E.2d 755", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "759", "parenthetical": "\"There is no requirement that all claims be legally consistent\"" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 678", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523105 ], "year": 1986, "pin_cites": [ { "page": "684", "parenthetical": "\"There is no requirement that all claims be legally consistent\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0678-01" ] }, { "cite": "372 S.E.2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 492", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11353675 ], "year": 2001, "pin_cites": [ { "page": "38" } ], "opinion_index": 0, "case_paths": [ "/nc-app/146/0033-01" ] }, { "cite": "117 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "790", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "253 N.C. 782", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627186 ], "year": 1961, "pin_cites": [ { "page": "786", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/253/0782-01" ] }, { "cite": "435 S.E.2d 337", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "334 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530443, 2532332, 2530396, 2531257, 2532508 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/334/0621-03", "/nc/334/0621-02", "/nc/334/0621-05", "/nc/334/0621-04", "/nc/334/0621-01" ] }, { "cite": "430 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "692-93" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525976 ], "year": 1993, "pin_cites": [ { "page": "536" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0531-01" ] } ], "analysis": { "cardinality": 613, "char_count": 15971, "ocr_confidence": 0.75, "pagerank": { "raw": 2.6555047060351924e-07, "percentile": 0.82443146299263 }, "sha256": "65c28feab7a695236862e65d0f8cfd42d8119218ac173dd7d195bc7e377fb85a", "simhash": "1:0fee227e366e99f2", "word_count": 2580 }, "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. MECKLENBURG UTILITIES, INC., ORANGE COUNTY BOARD OF EDUCATION and JEFFREY W. THARPE, as Trustee after termination of Tharpe\u2019s Excavating, Inc. Defendants" ], "opinions": [ { "text": "HUDSON, Judge.\nOn 30 August 2004, the trial court dismissed all of plaintiffs claims against defendant Orange County Board of Education (\u201cthe Board\u201d), and all but one of plaintiffs claims against defendant Mecklenburg Utilities, Inc., (\u201cMecklenburg\u201d), with prejudice. Plaintiff appeals. We affirm in part and reverse in part and remand.\nIn 2000, the Board entered a contract with Mecklenburg who was to perform 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 more than $500,000 owed to plaintiff and, in April 2001, plaintiff gave notice of nonpayment 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. In February 2002, Tharpe\u2019s Inc. assigned all of its claims against Mecklenburg and the Board to plaintiff.\nIn March 2002, plaintiff brought suit against the Board, Mecklenburg, Tharpe\u2019s and Tharpe in James River v. Tharpe\u2019s (\u201cJames River I\u201d). The complaint in James River I set forth the following claims: 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. In April 2004, the trial court held a hearing on defendants\u2019 motions to dismiss in James River I, and dismissed all claims against Mecklenburg and the Board pursuant to Rule 12(b)(6). Plaintiff appealed and we affirmed in part, reversed in part, and remanded. James River Equip., Inc. v. Tharpe\u2019s Excavating, Inc., 179 N.C. App. -, - S.E.2d - (2006).\nOn 19 February 2004, plaintiff filed the suit which is the subject of this appeal: James River v. Mecklenburg Utilities et al (\u201cJames River II\u201d). In its James River II complaint, plaintiff, as assignee of Tharpe\u2019s, rather than in its own right, asserted claims of breach of express contract, lien on funds, quantum meruit, and breach of statutory duties and contract, against the Board and Mecklenburg. Plaintiff also asserted claims against the Board for violations of equal protection and due process. Upon motions to dismiss by defendants Mecklenburg and the Board, the trial court dismissed all claims against the Board, and all but plaintiffs express contract claim against Mecklenburg, which the court declined to dismiss. The trial court dismissed the claims against the Board pursuant to Rule 12(b)(6), and also on the grounds of res judicata and collateral estop-pel, with the exception of the dismissal of the express contract claim against the Board, which the court dismissed only pursuant to Rule 12(b)(6). The trial court dismissed all but one of plaintiffs claims against Mecklenburg pursuant to res judicata, collateral estoppel, and Rule 12(b)(6). The trial court found that there was no reason for delay of appellate review of the dismissed claims and certified the case for appeal pursuant to Rule 54(b). For the reasons stated in our decision in James River I, we conclude that we must review this appeal on the merits.\nFirst we address the trial court\u2019s dismissal of claims pursuant to the doctrines of collateral estoppel and res judicata. We conclude that to the extent that the trial court dismissed plaintiffs claims on these grounds, its order was erroneous. Generally, \u201cres judicata precludes a second suit involving the same claim between the same parties or those in privity with them when there has been a final judgment on the merits in a prior action in a court of competent jurisdiction.\u201d Northwestern Financial Group Inc. v. County of Gaston, 110 N.C. App. 531, 536, 430 S.E.2d 689, 692-93, disc. review denied, 334 N.C. 621, 435 S.E.2d 337 (1993). However,\n[T]he general rule, as gathered by the decisions and the text writers, is this: A judgment does not conclude parties to the action who are not adversaries and who do not have opportunity to litigate their differences inter se ... . The theory of the many decisions supporting the general rule is that the judgment merely adjudicates the rights of the plaintiff as against each defendant, and leaves unadjudicated the rights of the defendants among themselves.\nGunter v. Winders, 253 N.C. 782, 786, 117 S.E.2d 787, 790 (1961) (internal citation and quotation marks omitted). Here, Tharpe\u2019s was not an adverse party to Mecklenburg and the Board in James River I, but was a co-defendant along with Mecklenburg and the Board. In that suit, James River asserted its claims based on its own contract with Tharpe\u2019s for equipment rental. Here, plaintiff asserts Tharpes\u2019 claims against Mecklenburg and the Board, based on Tharpes\u2019 contract with Mecklenburg. Thus, we conclude that plaintiff\u2019s claims, as assignee of Tharpe\u2019s, are not barred by res judicata. Similarly, the doctrine of collateral estoppel \u201cis designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.\u201d Scarvey v. First Federal Savings and Loan Ass\u2019n of Charlotte, 146 N.C. App. 33, 38, 552 S.E.2d 655, 659 (2001). The elements of collateral estoppel are: \u201c(1) a prior suit resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.\u201d McDonald v. Skeen, 152 N.C. App. 228, 229, 567 S.E.2d 209, 211 (2002). For the reasons discussed above, we conclude that collateral estoppel does not bar plaintiff\u2019s claims as assignee of Tharpe\u2019s.\nAs we conclude that the trial court erroneously dismissed plaintiff\u2019s claims pursuant to res judicata and collateral estoppel, we now address the trial court\u2019s dismissal of these claims pursuant to Rule 12(b)(6). 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). \u201cThe 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).\nPlaintiff argues that the trial court erred in dismissing its claim that defendants violated their statutory duty to require a payment bond for the life of the project under N.C. Gen. Stat. \u00a7 44A-26 (2001). Here, plaintiff asserts claims as assignee of Tharpe\u2019s, who was also a subcontractor under N.C. Gen. Stat. \u00a7 44A-26. For the reasons discussed in James River I, we affirm the trial court\u2019s dismissal of this claim as to defendant Board and we reverse as to defendant Mecklenburg.\nPlaintiff also asserts that the trial court erroneously dismissed its claims that Tharpe\u2019s had a lien on funds held by the Board and Mecklenburg. For the reasons discussed in James River I, we affirm the trial court\u2019s dismissal of this claim as to the Board, but reverse as to Mecklenburg.\nNext, we address plaintiff\u2019s argument that the trial court erred in dismissing its claims against the Board and Mecklenburg based in quantum meruit. As discussed in James River I, we conclude that there is no civil remedy available against the Board. Regarding Mecklenburg, we note that \u201c[t]here cannot be an express and an implied contract for the same thing existing at the same time.\u201d Vetco Concrete Co. v. Troy Lumber Co., 256 N.C. 709, 713, 124 S.E.2d 905, 908 (1962). \u201cIt is only when parties do not expressly agree that the law interposes and raises a promise.\u201d Id. Here, the plaintiff\u2019s own complaint alleges that there was an express contract between Tharpe\u2019s and Mecklenburg, but the allegations of the claim in quantum meruit are asserted \u201cin the alternative to\u201d the express contract claim. It is well-established that \u201c[ljiberal pleading rules permit pleading in the alternative,\u201d and that theories may be pursued in the complaint even if plaintiff may not ultimately be able to prevail on both. Catoe v. Helms Const. & Concrete Co., 91 N.C. App. 492, 498, 372 S.E.2d 331, 335 (1998); Concrete Serv. Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340 S.E.2d 755, 759 (1986) (\u201cThere is no requirement that all claims be legally consistent\u201d); N.C. Gen. Stat. \u00a7 1A-1, Rule 8(e)(2) (2003). We conclude that the trial court erred in dismissing plaintiff\u2019s claims in quantum meruit.\nPlaintiff also argues that the trial court erroneously dismissed its first claim for breach of express contract against the Board pursuant to Rule 12(b)(6). The court denied the motion to dismiss the express contract claims against Mecklenburg. In its amended complaint, plaintiff entitled Count I as \u201cBreach of Express Contract,\u201d but in its brief, plaintiff argues this assignment of error as breach of an implied warranty. Plaintiff, contends that the Board breached an implied warranty to provide adequate plans and specifications to Tharpe\u2019s by misrepresenting the rock, undercut and topsoil involved in the pregrading project. However, all cases cited by plaintiff in support of this argument involved an express contract between the parties. Here, plaintiff alleges the existence of a contract between the Board and Mecklenburg for the pregrading package, but alleges no contract between the Board and Tharpe\u2019s. We conclude that the trial court did not err in dismissing this claim.\nIn its final argument, plaintiff contends that the trial court erred in dismissing its due process and equal protection claims against the Board, counts VI-VIII of its amended complaint. Plaintiff argues that the trial court erroneously dismissed these counts, because the Board did not move to dismiss these claims. We first note that plaintiff has cited no authority in support of its argument, and thus has abandoned this assignment of error. N.C. R. App. P. 28(b)(6). Furthermore, although defendant did not specifically mention these claims in its motions to dismiss, it had moved to dismiss plaintiffs original and first amended complaints in their entirety for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). At the time of the hearing on these motions, plaintiff had a pending motion to amend their amended complaint, to add counts VI-VIII, and the trial court allowed the amendment and proceeded to hear arguments to dismiss these claims. We overrule this assignment of error.\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 & Carrie V. Barbee, 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. MECKLENBURG UTILITIES, INC., ORANGE COUNTY BOARD OF EDUCATION and JEFFREY W. THARPE, as Trustee after termination of Tharpe\u2019s Excavating, Inc. Defendants\nNo. COA05-622\n(Filed 5 September 2006)\n1. Collateral Estoppel and Res Judicata\u2014 claims as an as-signee not barred\nThe trial court erred by dismissing plaintiff\u2019s claims including express contract rights (against defendant Board of Education), lien on funds, quantum meruit, breach of statutory duties and contract, and violation of equal protection and due process rights based on the doctrines of collateral estoppel and res judicata, because defendant Tharpe\u2019s Excavating was a codefendant with defendant Mecklenburg Utilities and defendant Board of Education in a prior case, and plaintiff\u2019s claims in this case against defendants Mecklenburg Utilities and Board of Education are as an assignee of Tharpe\u2019s Excavating.\n2. Construction Claims\u2014 statutory duty \u2014 payment bond for life of project\nThe trial court did not err by dismissing under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) plaintiff\u2019s claim that defendant Board of Education violated its statutory duty to require a payment bond for the life of the project under N.C.G.S. \u00a7 44A-26, but erred regarding defendant Mecklenburg Utilities for the reasons discussed in James River I.\n3. Liens\u2014 funds \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by dismissing plaintiff\u2019s claims that defendant Tharpe\u2019s Excavating had a lien on funds held by defendant Board of Education, but erred by dismissing claims as to defendant Mecklenburg Utilities for the reasons discussed in James River I.\n4. Quantum Meruit\u2014 no express and implied contract for same thing existing at same time\nThe trial court did not err by dismissing its claims against defendants Board of Education and Mecklenburg Utilities based on quantum meruit, because: (1) there is no civil remedy available against defendant Board of Education; and (2) regarding defendant Mecklenburg Utilities, there cannot be an express and an implied contract for the same thing existing at the same time.\n5. Contracts\u2014 breach of express contract \u2014 failure to show express contract\nThe trial court did not err by dismissing plaintiffs first claim for breach of express contract against defendant Board of Education pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6), because: (1) all cases cited by plaintiff in support of its argument involved an express contract between the parties; and (2) in the instant case plaintiff alleges the existence of a contract between defendants Board of Education and Mecklenburg Utilities for the pre-grading package, but alleges no contract between defendants Board of Education and Tharpe\u2019s Excavating.\n6. Constitutional Law\u2014 due process \u2014 equal protection\u2014 amended complaint \u2014 motion to dismiss \u2014 sufficiency of evidence\nThe trial court did not err by dismissing plaintiffs due process and equal protection claims against defendant Board of Education including counts VI-VIII of its amended complaint, because: (1) plaintiff failed to cite authority in support of its argument and thus abandoned this assignment of error under N.C. R. App. R 28(b)(6); (2) although defendant did not specifically mention these claims in its motions to dismiss, it had moved to dismiss plaintiffs original and first amended complaints in their entirety for failure to state a claim upon which relief can be granted under N.C.G.S. \u00a7 1A-1, Rule 12(b)(6); and (3) at the time of the hearing on these motions, plaintiff had a pending motion to amend their amended complaint, to add counts VI-VIII, and the trial court allowed the amendment and proceeded to hear arguments to dismiss these claims.\nAppeal by plaintiff from order entered 24 March 2005 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 & Carrie V. Barbee, for defendant-appellee Mecklenburg Utilities, Inc.\nCheshire & Parker, by D. Michael Parker, for defendant-appellee Orange County Board of Education." }, "file_name": "0414-01", "first_page_order": 446, "last_page_order": 452 }