{
  "id": 8171650,
  "name": "NELLO L. TEER COMPANY, INC., Plaintiff v. JONES BROS., INC., FIREMAN'S FUND INSURANCE COMPANY, and NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendants",
  "name_abbreviation": "Nello L. Teer Co. v. Jones Bros.",
  "decision_date": "2007-03-20",
  "docket_number": "No. COA06-340",
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    "judges": [
      "Judges MCCULLOUGH and LEVINSON concur."
    ],
    "parties": [
      "NELLO L. TEER COMPANY, INC., Plaintiff v. JONES BROS., INC., FIREMAN\u2019S FUND INSURANCE COMPANY, and NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendants"
    ],
    "opinions": [
      {
        "text": "MARTIN, Chief Judge.\nThe North Carolina Department of Transportation (\u201cNCDOT\u201d) initiated public highway construction projects to widen a 12-mile segment of U.S. Highway 15-501 in Chatham and Orange Counties. In January 2001, NCDOT contracted with Jones Brothers Incorporated (\u201cJones Bros.\u201d) to perform the work, the completion of which was originally scheduled for thirty-five months. Jones Bros, subcontracted all of the paving work for the project to Nello L. Teer Company (\u201cTeer\u201d). All facets of construction were to be performed in accordance with NCDOT\u2019s contract and Teer agreed to be bound by these same conditions.\nTeer used the Traffic Control Plan from NCDOT\u2019s specifications to determine that it would be involved in the project for fifteen months. Completion of the project was substantially delayed; reasons for the delays are in controversy. Jones Bros, contended the delays came about due to NCDOT\u2019s failure to timely relocate underground and overhead utilities that were impeding the construction. In addition, NCDOT redesigned the project, resulting in a further delay of six months. Teer contended that substantial delays were attributable to improper project management by Jones Bros. Teer alleged it ultimately spent more than forty-three months on the project, causing it significant monetary damages and constituting a material and cardinal change to the contract. On 30 June 2004, Teer filed a complaint seeking damages for such delays and declaratory relief excusing Teer from further performance under the contract. Jones Bros, filed an answer, moving to dismiss, asserting affirmative defenses, and asserting counterclaims. Pursuant to an order of the trial court, NCDOT was made a party to the litigation, and both Teer and Jones Bros, amended their pleadings. Jones Bros.\u2019 amended pleading included cross-claims against NCDOT and a motion to dismiss Teer\u2019s claims, citing Teer\u2019s failure to exhaust its administrative remedies. NCDOT moved to dismiss the claims of both Teer and Jones Bros.\nOn 11 January 2005, the trial judge granted partial summary judgment denying Teer\u2019s claims for declaratory relief. Jones Bros, moved for a stay in the litigation between Jones Bros, and Teer as well as the cross-claims between Jones Bros, and NCDOT until resolution of the administrative process as outlined in the job\u2019s contract, which could not begin until the job was finished. By order dated 11 October 2005, the trial court denied the motion. On 18 November 2005, NCDOT\u2019s motion to dismiss Jones Bros.\u2019 cross-claims was denied.\nDefendants-appellants Jones Bros, and Fireman\u2019s Fund Insurance Company appeal from the order entered on 11 October 2005 denying their motion for a stay and determining that NCDOT was not a necessary party to the litigation at issue. Defendant-appellant NCDOT appeals the order entered 18 November 2005 denying its motion to dismiss cross-claims asserted by Jones Bros. Plaintiff-appellee and cross-appellant Teer cross-appeals from the order entered 11 January 2005 granting Jones Bros.\u2019 motion for partial summary judgment.\nAt the outset, we note that each of the appeals before this Court is from an interlocutory order. \u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). A party cannot immediately appeal an interlocutory order unless (1) a trial court enters a final judgment to fewer than all of the claims or parties in an action and certifies that there is no reason to delay the appeal or (2) the failure to grant immediate review would affect a substantial right. Davis v. Davis, 360 N.C. 518, 524-25, 631 S.E.2d 114, 119 (2006) (citation omitted). A right is substantial if it will be lost or irremediably and adversely affected if the trial court\u2019s order is not reviewed before a final judgment. RPR & Assocs. v. University of N.C. Chapel Hill, 153 N.C. App. 342, 347, 570 S.E.2d 510, 514 (2002). \u201cWhether a substantial right is affected is determined on a case-by-case basis and should be strictly construed.\u201d Flitt v. Flitt, 149 N.C. App. 475, 477, 561 S.E.2d 511, 513 (2002).\nI.\nJones Bros, first challenges the trial court\u2019s denial of its motion to stay. The denial of a motion to stay is an interlocutory order with no absolute right to an immediate appeal. Howerton v. Grace Hosp., Inc., 124 N.C. App. 199, 201, 476 S.E.2d 440, 442 (1996). The order did not dispose of any of the claims or parties. Id., 476 S.E.2d at 442-43. As a result, Jones Bros, must demonstrate that the trial court\u2019s decision deprived it of a substantial right which will be lost absent immediate review. Id., 476 S.E.2d at 443. A party\u2019s right to avoid separate trials of the same factual issues may constitute a substantial right. Green v. Duke Power Co., 305 N.C. 603, 606, 290 S.E.2d 593, 595 (1982) (citation omitted). This Court has interpreted Green as creating a two-part test requiring that a party show \u201c(1) the same factual issues would be present in both trials and (2) the possibility of inconsistent verdicts on those issues exists.\u201d N.C. Dep\u2019t of Transp. v. Page, 119 N.C. App. 730, 735-36, 460 S.E.2d 332, 335 (1995) (citation omitted).\nJones Bros, argues that it is entitled to an immediate appeal because the denial of the motion to stay exposes it to multiple trials on overlapping issues and the possibility of inconsistent verdicts on the delay claims. Jones Bros.\u2019 motion requested that Teer\u2019s claims \u201cbe stayed pending resolution of claims against NCDOT through the administrative process[.]\u201d The liability of NCDOT, as third-party defendants to Jones Bros., is dependent upon the resolution of the issue of Jones Bros.\u2019 liability to Teer. Further, the delay claims depend upon similar factual issues and similar proof. The delays alleged by Teer during its subcontracting work are the same delays that affected Jones Bros, and which involve NCDOT. In addition, inconsistent verdicts could occur. For example, Jones Bros, could be found liable to Teer on some issues, but could be precluded from raising those same issues against NCDOT during the administrative process. Haying found a substantial right to be affected, Jones Bros, motion for a stay, which was denied by the trial court, is immediately appealable.\nJones Bros, argues that the trial court erred by denying the motion to stay. We agree. Contractual agreements that call for the parties to exhaust administrative procedures are binding unless such procedures are shown to be \u201cinadequate or unavailable.\u201d U.S. v. Grace & Sons, Inc., 384 U.S. 424, 430, 16 L. Ed. 2d 662, 667-68 (1966) (indicating that \u201cthe inadequacy or unavailability of administrative relief must clearly appear before a party is permitted to circumvent his own contractual agreement.\u201d) NCDOT incorporates N.C.G.S. \u00a7 136-29 into every contract for highway construction as a statutory ground under which contractors may sue. See A.H. Beck Found. Co. v. Jones Bros., 166 N.C. App. 672, 679, 603 S.E.2d 819, 824 (2004). Under this provision, \u201cbefore a party may pursue a judicial action against the state for money claimed to be due under a highway construction contract, it must first pursue its administrative remedies.\u201d Id. (quoting In re Huyck Corp. v. Mangum, Inc., 309 N.C. 788, 792, 309 S.E.2d 183, 186 (1983)).\nIn the present case, N.C.G.S. \u00a7 136-29 was incorporated in the Principal Contact within Section 107-25, requiring that all claims be submitted in accordance with the statute. The subcontract agreement stated that \u201cSubcontractor agrees to give notice in writing and make all claims for which Owner is, or may be, liable in the manner provided and in a time framework which is consistent with the Principal Contract[.]\u201d Teer agreed to be bound .by the terms of the contract between Jones Bros, and NCDOT which requires that the parties exhaust administrative remedies for any claim in which NCDOT may be liable. The delay claims asserted by Teer, for which NCDOT is a third-party defendant, are subject to the contract\u2019s administrative relief provision. Teer was contractually obligated to follow the administrative process prior to seeking judicial relief. No showing has been made that the administrative process was either inadequate or unavailable. Grace & Sons, Inc., 384 U.S. at 430, 16 L. Ed. 2d at 667; see also Seal & Co., Inc. v. A.S. McGaughan Co., 907 F.2d 450, 455 (4th Cir. 1990) (finding a subcontractor\u2019s contract to incorporate the prime contract\u2019s administrative relief provision and reversing the denial of a motion to stay the subcontractor\u2019s claims). We reverse the lower court\u2019s denial of the motion to stay and remand the case to the trial court for entry of an order staying the present action pending the exhaustion of the administrative process.\nIn addition, Jones Bros, challenges that portion of the 11 October 2005 Case Status Order finding that NCDOT is no longer a necessary party to the litigation. This portion of the order was predicated on prior orders effectively eliminating the pending causes of action by Teer against NCDOT. By order dated 8 November 2004, the trial court dismissed Teer\u2019s claims for damages caused by NCDOT and, by order entered 11 January 2005, granted summary judgment against Teer\u2019s requested declaratory relief.\n\u201cA \u2018necessary\u2019 party is one whose interest will be directly affected by the outcome of the litigation.\u201d Begley v. Employment Security Comm., 50 N.C. App. 432, 438, 274 S.E.2d 370, 375 (1981). \u201cA proper party is one whose interest may be affected by a decree, but whose presence is not essential in order for the court to adjudicate the rights of others.\u201d Crosrol Carding Developments, Inc. v. Gunter & Cooke, Inc., 12 N.C. App. 448, 452, 183 S.E.2d 834, 837 (1971). Necessary parties must be joined while proper parties may be joined. Id. at 451, 183 S.E.2d at 837. Our Court has held that the challenge of an order declining to name an entity a necessary party is interlocutory. Terry\u2019s Floor Fashions, Inc. v. Murray, 61 N.C. App. 569, 570, 300 S.E.2d 888, 889 (1983). Further, such challenges may be asserted after a final judgment on all the claims without prejudice. Id. at 571, 300 S.E.2d at 890.\nAs reflected in the challenged order, NCDOT \u201ccontinues as a party to the extent that it has been made a proper party by service or has properly intervened.\u201d In the event of an adverse ruling, Jones Bros, maintains its right to seek contribution from NCDOT. Jones Bros, has failed to show how the trial court\u2019s order prejudices any asserted substantial right. This assignment of error is dismissed.\nII.\nTeer cross-appealed the trial court\u2019s grant of partial summary judgment dismissing Teer\u2019s first cause of action, by which Teer sought declaratory judgment excusing Teer from future performance as the result of a cardinal change to the subcontract. The cardinal change which formed the basis for Teer\u2019s claim was the project\u2019s alleged extended duration. Orders granting partial summary judgment are interlocutory. Davis v. Davis, 360 N.C. 518, 524, 631 S.E.2d 114, 119 (2006).\nJones Bros, terminated Teer from the subcontract in August 2005, excusing Teer from future performance under the contract and rendering Teer\u2019s appeal from the 11 January 2005 order moot. Teer conceded as much during the 6 September 2005 hearing before Judge Barber.\nMr. Coltrain: . . . [T]he Court determined that the declaratory relief would impact North Carolina DOT. The Court entered an order on the part of Nello Teer to make DOT a party to the transaction.\nThe Court: That\u2019s right. The Court brought DOT for the reason that the Court granted your relief that it could interfere with the paving of the highway. What\u2019s the status with paving? Are y\u2019all still providing asphalt?\nMr. Coltrain: Actually, Your Honor, Nello Teer has just recently been terminated.\nThe Court: So you got that relief that you wanted. \u2022\nMr. Coltrain: We got the relief that we wanted.\nThe Court: All right.\nMr. Coltrain: Not by the way we wanted it.\nThe Court: So that part of the lawsuit is moot.\nMr. Coltrain: Correct. Well, I\u2019ll say it\u2019s moot for all practical purposes at this point in time. There are some legal issues I would not cede.\n\u201cWhenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law.\u201d Dickerson Carolina, Inc. v. Harrelson, 114 N.C. App. 693, 697, 443 S.E.2d 127, 131 (1994) (citations omitted).\nEven assuming, arguendo, that Teer\u2019s appeal was not moot, Teer has failed to argue any substantial right that will be lost absent immediate review. See Howerton, 124 N.C. App. at 201, 476 S.E.2d at 443. \u201c[I]t is the appellant\u2019s burden to present appropriate grounds for this Court\u2019s acceptance of an interlocutory appeal.\u201d Jeffreys v. Raleigh Oaks Joint Venture, 115 N.C. App. 377, 379, 444 S.E.2d 252, 253 (1994). As a result, the issue is not properly before this Court and we need not address defendant\u2019s related assignments of error. See Duncan v. Bryant, 129 N.C. App. 245, 248, 497 S.E.2d 443, 445 (1998) (indicating that the party seeking to appeal an interlocutory order has the burden of showing this Court that such an order affects a substantial right at jeopardy absent review prior to final judgment).\nIII.\nNCDOT contends the trial court erred in denying its motion to dismiss. NCDOT argued, by virtue of the incorporation of N.C.G.S. \u00a7 136-29 into the contract, that any claims asserted against it were barred by the doctrine of sovereign immunity until the project was completed and all administrative remedies were exhausted. Our decision to grant Jones Bros, motion to stay until the administrative remedies have been exhausted renders NCDOT\u2019s appeal moot and we need not address it.\nReversed and Remanded in part; Dismissed in part.\nJudges MCCULLOUGH and LEVINSON concur.",
        "type": "majority",
        "author": "MARTIN, Chief Judge."
      }
    ],
    "attorneys": [
      "Elmore & Wall, P.A., by Keith E. Coltrain, Kimila L. Wooten & L. Franklin Elmore, for plaintiff-appellee.",
      "Parker, Poe, Adams & Bernstein, L.L.P, by Charles G. Meeker and Brian D. Darer, for defendants-appellants Jones Bros., Inc. and Fireman\u2019s Fund Insurance Co.",
      "Attorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for defendant-appellant North Carolina Department of Transportation."
    ],
    "corrections": "",
    "head_matter": "NELLO L. TEER COMPANY, INC., Plaintiff v. JONES BROS., INC., FIREMAN\u2019S FUND INSURANCE COMPANY, and NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, Defendants\nNo. COA06-340\n(Filed 20 March 2007)\n1. Appeal and Error\u2014 appealability \u2014 denial of stay \u2014 exposure to overlapping issues and inconsistent verdicts\nThe denial of defendant\u2019s motion for a stay in a construction claim involving multiple parties was interlocutory but appealable as affecting a substantial right where the denial of the stay exposed defendant to multiple trials on overlapping issues and the possibility of inconsistent verdicts.\n2. Highways and Streets\u2014 road construction \u2014 provision that administrative remedies be exhausted \u2014 stay of claim\nThe trial court erred by denying defendant\u2019s motion to stay a road construction claim where the defendant sought a stay until resolution of the administrative process as' outlined in the contract. Contractual agreements that call for the parties to exhaust administrative procedures are binding unless such procedures are shown to be inadequate or unavailable. No such showing was made. N.C.G.S. \u00a7 136-29.\n3. Parties\u2014 State not a necessary party \u2014 no prejudice\nDefendant Jones Bros, did not show prejudice to any asserted substantial right in a road construction case from an order that the State was no longer a necessary party. The order noted that NCDOT continues as a party to the extent it has been made a party by proper service or has properly intervened, and, in the event of an adverse ruling, defendant maintains its right to seek contribution from NCDOT.\n4. Appeal and Error\u2014 appealability \u2014 mootness\u2014party released from contract\nAn appeal from a partial summary judgment dismissing a declaratory judgment claim was moot where the claim sought release of a subcontractor from the future performance of a road-paving subcontract, but the contractor had terminated the subcontractor. Even if not moot, plaintiff did not argue any substantial right that would be lost absent immediate review.\nAppeal by defendants-appellants and cross-appeal by plaintiff-cross-appellant from orders entered 11 January 2005, 11 October 2005, and 18 November 2005 by Judge Steve A. Balog, Judge Wade Barber, and Judge Michael Morgan, respectively, in Orange County Superior Court. Heard in the Court of Appeals 8 January 2007.\nElmore & Wall, P.A., by Keith E. Coltrain, Kimila L. Wooten & L. Franklin Elmore, for plaintiff-appellee.\nParker, Poe, Adams & Bernstein, L.L.P, by Charles G. Meeker and Brian D. Darer, for defendants-appellants Jones Bros., Inc. and Fireman\u2019s Fund Insurance Co.\nAttorney General Roy Cooper, by Special Deputy Attorney General Joseph E. Herrin, for defendant-appellant North Carolina Department of Transportation."
  },
  "file_name": "0300-01",
  "first_page_order": 332,
  "last_page_order": 339
}
