{
  "id": 3821973,
  "name": "CLEVELAND CONSTRUCTION, INC., Plaintiff v. ELLIS-DON CONSTRUCTION, INC.; HKS, INC.; STATE OF NORTH CAROLINA THROUGH THE UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM; THE UNIVERSITY OF NORTH CAROLINA HOSPITALS AT CHAPEL HILL; FEDERAL INSURANCE COMPANY; THE TRAVELERS CASUALTY AND SURETY COMPANY f/k/a THE AETNA CASUALTY AND SURETY COMPANY, Defendants",
  "name_abbreviation": "Cleveland Construction, Inc. v. Ellis-Don Construction, Inc.",
  "decision_date": "2011-04-05",
  "docket_number": "No. COA10-525",
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        "text": "HUNTER, Robert C., Judge.\nPlaintiff Cleveland Construction, Inc. (\u201cCCI\u201d) appeals from the trial court\u2019s entry of partial summary judgment on CCI\u2019s extra/ changed work, delay/disruption, and inefficiency claims against defendants Ellis-Don Construction, Inc. and its sureties, Federal Insurance Company and The Travelers Casualty and Surety Company (collectively, \u201cEDCI\u201d). After careful review, we affirm the summary judgment order. Both CCI and EDCI appeal from the trial court\u2019s final judgment adopting, with modifications, the report of the referee who conducted the evidentiary hearings in this case. We affirm in part and reverse in part.\nFactual and Procedural Background\nThis case arises out of the construction of the North Carolina Children\u2019s Hospital and the North Carolina Women\u2019s Hospital (\u201cthe project\u201d), located in Chapel Hill, North Carolina. The University of North Carolina Hospitals (\u201cUNCH\u201d), a state \u201cpublic body\u201d and owner of the project, awarded the project on a multi-prime basis on 10 April 1997. UNCH entered into a contract with HKS, Inc. to design and manage the construction of the project. HKS hired Smith Seckman Reid, Inc. (\u201cSSR\u201d) and Corley Redfoot Zack, Inc. (\u201cCRZ\u201d) to serve as consultants on the project, with SSR providing services relating to the mechanical, plumbing, electric, and fire protection systems, and CRZ providing architectural services, including planning and design work, administration of the construction process, and inspections.\nOn 2 June 1997, UNCH awarded EDCI, a North Carolina licensed general contractor, the general contract (\u201cprime contract\u201d) for the construction of the project. The original contract amount was for approximately $47.6M and the original contract duration was for 1,095 calendar days. The prime contract provided for liquidated damages for late completion and awarded a bonus for early completion. UNCH issued a notice to proceed on the project on 30 June 1997, with an original completion date of 30 June 2000.\nAs the general prime contractor on the public project, EDCI had statutory as well as contractual duties regarding scheduling and coordinating the work on the project. Under the prime contract, EDCI provided performance and payment bonds \u2014 issued by Federal and Travelers \u2014 ensuring completion of the project and payment of EDCI\u2019s subcontractors. The project was large and complex, involving construction of two new towers, renovations in the main hospital building, and construction of corridors connecting the towers to the main building. The multi-prime project delivery system increased the difficulty in coordinating the work on the project. The project was \u201csignificantly troubled\u201d and was not substantially completed until 24 March 2003, almost three years after the prime contract\u2019s original completion date. Problems during the project generated claims at every level\u2014 claims between the subcontractors and the prime contractors as well as claims between the primes and the owner and designers.\nPertinent to this appeal, EDCI and CCI entered into a subcontract on 15 October 1997, with CCI agreeing to furnish and install, in compliance with the prime contract\u2019s specifications, metal studs, drywall, firewalls, vapor barrier, insulation, and acoustical ceiling and ceiling tiles. The original subcontract price was for almost $6.6M. Throughout CCI\u2019s work on the project, CCI submitted to EDCI numerous change order requests (\u201cCCIPIs\u201d) and extra work orders (\u201cEWOs\u201d). Under the subcontract, CCI submitted periodic payment applications, containing a sworn certification statement in which CCI \u201cacknowledge^] that it ha[d] no unsettled change order requests or claims\u201d pending against EDCI as of the date each application was submitted. Beginning with its 20 August 2000 application for payment (No. 29) and continuing with each successive application, CCI attached an \u201cExhibit A,\u201d which listed all then-pending CCIPIs. Starting with CCI\u2019s 20 June 2001 payment application (No. 39), CCI began including in Exhibit A pending EWO claims in addition to the CCIPIs. CCI first listed claims for delay, disruption, and inefficiency damages in its 31 December 2001 payment application (No. 43).\nAs the project neared completion, EDCI informed its principal subcontractors, including CCI, that it intended to submit a claim for additional compensation to UNCH and the State Construction Office to recover costs it had incurred as a result of the problems associated with the project. To the extent that the subcontractors desired to participate, EDCI requested that they submit a claim to EDCI to \u201cpass through\u201d to the State. On 28 March 2003, CCI submitted a verified claim to EDCI, in which CCI requested approximately $4.2M. On 1 July 2003, EDCI submitted a verified claim, which included CCI\u2019s claim as well as the claims of other subcontractors, to the Director of the State Construction Office. A hearing on the claims was held at the State Construction Office on 28-29 April 2004.\nOn 3 October 2005, EDCI and UNCH executed a settlement agreement in which UNCH agreed to pay EDCI $5M in full settlement of its claims against UNCH. The agreement provides that both EDCI and UNCH \u201cbelievefd]\u201d that the project\u2019s designers \u2014 HKS, SSR, and CRZ\u2014 were \u201cprimarily and proximately responsible for the major problems encountered during the course of the Project[.]\u201d The agreement specifies that the claims settled by the parties included EDCI\u2019s claims on its contract balance, liquidated damages, accrued interest, and change orders, but did not include any payment for delay/disruption or inefficiency damages, or subcontractor claims.\nShortly after settling with UNCH, EDCI received a demand letter from CCI, demanding payment on its extra/changed work claims as well as its remaining subcontract balance. EDCI responded in a letter dated 3 November 2005, refusing to pay the amount requested by CCI, explaining that it believed that numerous backcharges against CCI \u201csubstantially reduced\u201d the amounts owed on CCI\u2019s claims. On 30 November 2004, CCI filed a complaint against EDCI, HKS, the State of North Carolina, UNCH, Federal, and Travelers, asserting claims for CCI\u2019s outstanding subcontract balance, extra/changed work, delay/ disruption, and inefficiency damages.\nWhile CCI\u2019s action was ongoing, on 21 December 2005, EDCI entered into a settlement agreement with HKS and SSR in which the designers made a lump sum payment of $5.5M to EDCI in exchange for EDCI releasing all its claims against HKS and SSR for \u201csubstantial additional costs incurred in performing its work on the Project. . . .\u201d Roughly two years later, on 4 January 2007, EDCI settled its claims against the remaining designer, CRZ, with CRZ paying a lump sum of $390,000 to EDCI in consideration of EDCI\u2019s releasing all its claims against CRZ arising out of the project. As a result of the settlement agreements, EDCI received $10.89M from the project\u2019s owner and designers on its initial claim of over $21M.\nCCI voluntarily dismissed the State and UNCH as defendants in this action, and the trial court granted HKS\u2019 motion for summary judgment on CCI\u2019s claims for failure to file its claims within the applicable statute of limitations period \u2014 leaving EDCI and its sureties, Federal and Travelers, as the remaining defendants in this lawsuit. On 4 December 2006, EDCI filed a motion for partial summary judgment on certain of CCI\u2019s extra/changed work, delay/disruption, and inefficiency claims, asserting, among other things, that \u201call such claims [we]re barred by the applicable statute of limitations\u201d; and that those claims arising prior to certain dates were waived and released under oath by CCI in its periodic payment applications. After conducting a hearing on EDCI\u2019s motion, Superior Court Judge Paul G. Gessner entered partial summary judgment in favor of EDCI, ruling that CCI had waived and released the challenged claims. Judge Gessner, however, denied EDCI\u2019s motion for partial summary judgment based on the statute of limitations.\nIn preparation for trial, a dispute arose between CCI and EDCI as to what claims were, in fact, barred by Judge Gessner\u2019s 11 April 2007 summary judgment order. Consequently, on 18 February 2008, EDCI filed a motion in limine to prevent CCI from presenting evidence at trial regarding (1) its claims for extra/changed work and delay/disruption damages that arose prior to 20 August 2000, and (2) its claims for extra/changed work and delay/disruption damages that arose between 21 August 2000 and 20 June 2001 that were not identified and reserved in Exhibit A in CCI\u2019s periodic payment applications. Although Superior Court Judge Robert H. Hobgood initially denied EDCI\u2019s motion in limine, he ultimately entered an order on 28 April 2008 granting EDCI\u2019s subsequent motion, providing:\n[CCI] shall not be allowed to submit any evidence related to delay, disruption, or labor inefficiency claims and/or damages against [EDCI], . . . [I]t is not the intent of this Order to preclude [CCI] from presenting evidence of delay, disruption or lost efficiency claims, to the extent that [EDCI] did pass those claims through to third parties, and received payment thereon.\nPrior to conducting a jury trial, Judge Hobgood determined that \u201cthis case involves the resolution of an issue that requires the examination of a long or complicated account in the field of public construction law\u201d and that \u201c[a] referee with expertise in public construction law and accounting is necessary to take testimony, review exhibits and report to the Court . ...\u201d As a result, Judge Hobgood referred the case to a referee pursuant to Rule 53 of the Rules of Civil Procedure. After conducting extensive evidentiary hearings, the referee submitted his report to Judge Hobgood on 14 July 2009. In his report, the referee awarded CCI the principal amount of $1,618,808, which consisted of CCI\u2019s subcontract balance of $369,951, and $1,248,857 based on CCI\u2019s extra/changed work, delay/disruption, and inefficiency claims. The referee also awarded CCI prejudgment interest on the \u201cundisputed\u201d subcontract balance.\nBoth CCI and EDCI filed exceptions to the referee\u2019s report. After holding a hearing on 15 October 2009, Judge Hobgood entered final judgment on 1 December 2009, largely adopting the referee\u2019s report and overruling the parties\u2019 exceptions. Judge Hobgood, however, modified the report to assess prejudgment interest on CCI\u2019s total award, running from 3 November 2005 to the date of judgment. EDCI filed a motion to amend the final judgment on 3 December 2009, and Judge Hobgood denied the motion on 8 February 2010. CCI appeals from Judge Gessner\u2019s 11 April 2007 summary judgment order, and both CCI and EDCI appeal from Judge Hobgood\u2019s 1 December 2009 final judgment.\nSummary Judgment\nCCI argues that entry of partial summary judgment was improper in this case. The standard of review of an order granting summary judgment requires a two-part analysis of whether (1) on the basis of the materials supplied to the trial court, there is a genuine issue of material fact and (2) the moving party'is entitled to judgment as a matter of law. Summey v. Barker, 357 N.C. 492, 496, 586 S.E.2d 247, 249 (2003); N.C. R. Civ. P. 56(c). The moving party has the burden of demonstrating the lack of any triable issue of fact and entitlement to judgment as a matter of law. Garner v. Rentenbach Constructors, Inc., 350 N.C. 567, 572, 515 S.E.2d 438, 441 (1999). The evidence produced by the parties is viewed in the light most favorable to the non-moving party. Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, 835 (2000). A trial court\u2019s ruling on a motion for summary judgment is reviewed de novo as the court resolves only questions of law. Va. Electric and Power Co. v. Tillett, 80 N.C. App. 383, 385, 343 S.E.2d 188, 191, cert. denied, 317 N.C. 715, 347 S.E.2d 457 (1986).\nCCI contends that Judge Gessner erred in entering summary judgment in EDCI\u2019s favor on CCI\u2019s extra/changed work, delay/disruption, and inefficiency claims:\n(1) As to all claims of the Plaintiff which arose prior to August 20, 2000, there is no genuine issue of material that all such claims were waived and released under oath; Defendants are, therefore, entitled to judgment as a matter of law, that all claims which arose prior to August 20, 2000 have been waived and released by Plaintiff and that Plaintiff is not entitled to recover any sum for such claims.\n(2) As to all claims arising during the time frame of August 20, 2000 through and including June 20, 2001, there is no genuine issue of material that all of Plaintiff\u2019s claims not specifically reserved in its payment applications were waived and released under oath; Defendants are, therefore, entitled to judgment as a matter of law, that all claims arising after August 20, 2000 through and including June 20, 2001, which were not specifically reserved in Plaintiffs payment applications were waived and released by the Plaintiff and that Plaintiff is not entitled to recover any sum for all such claims not specifically reserved in the payment applications.\nJudge Gessner ruled that CCI had \u201cwaived and released under oath\u201d all of its unreserved claims arising prior to 21 June 2001 based on language in the parties\u2019 form labeled \u201cSubcontractor\u2019s Application for Payment and Interim Waiver and Release Upon Payment,\u201d which provides in pertinent part:\nCERTIFICATE OF SUBCONTRACTOR:\nThe undersigned mechanic and/or materialman (\u201cSub contractor\u201d) acknowledges that it has no unsettled change order requests or claims against said Contractor for said building or premises through the date hereof. Subcontractor also certifies that the payments, less applicable retention, have been made through the period covered by previous payments received from the Contractor to (1) all subcontractors (sub-subcontractors) and (2) for all materials and labor used in or in connection with the performance of the Subcontract. . . . This certification is for the benefit of, and may be relied upon by the owner, the prime contractor, the construction lender, the principal and surety on any labor/material bond. This certification is made upon personal knowledge.\nINTERIM WAIVER AND RELEASE UPON PAYMENT:\nThe undersigned mechanic and/or materialman has been employed by Ellis-Don Construction, Inc. to furnish LABOR & MATERIALS (describe materials and/or labor) for the construction of improvements known as UNCH which is located in the City of CH. County of Orange, and is owned by UNIV. OF NORTH CAROLINA (name of owner) and more particularly described as follows: 101 MANNING DRIVE. CHAPEL HTLL. NC (Describe the property upon which the improvements were made by either a metes and bounds description, the land lot district, block and lot number, or street address of the project)\nUpon receipt of the sum of $_, the mechanic and/or materialman waives and releases any and all liens or claims of lien it has upon the foregoing described property through the date of_, and excepting those rights and liens that the mechanic and/or materialman might have in any retained amounts on account of labor or materials, or both, furnished by the undersigned to or on account of said contractor for said building or premises.\nThe payment applications were signed by CCI under seal and notarized.\nEDCI contends that CCI\u2019s assertion of its unreserved pre-21 June 2001 claims in this lawsuit is inconsistent with CCI\u2019s \u201c[c]ertificat[ion]\u201d in its periodic payment applications \u201cacknowledg[ing] that it has no unsettled change order requests or claims against [EDCI] for said building or premises through the date [of application].\u201d Thus, EDCI argues, the doctrine of \u201cquasi-estoppel\u201d operates to bar CCI from asserting these claims in this lawsuit. Under the quasi-estoppel theory, also known as \u201cestoppel by benefit,\u201d a party who \u201caccepts a transaction or instrument and then accepts benefits under it may be estopped to take a later position inconsistent with the prior acceptance of that same transaction or instrument.\u201d Whitacre P\u2019ship v. Biosignia, Inc., 358 N.C. 1, 18, 591 S.E.2d 870, 882 (2004). As the \u201cessential purpose of quasi-estoppel ... is to prevent a party from benefitting by taking two clearly inconsistent positions[,]\u201d B & F Slosman v. Sonopress, Inc., 148 N.C. App. 81, 88, 557 S.E.2d 176, 181 (2001), it is an \u201cinherently flexible\u201d doctrine and \u201ccannot be reduced to any rigid formulation[,]\u201d Whitacre P\u2019ship, 358 N.C. at 18, 591 S.E.2d at 882. Quasi-estoppel \u201cdoes not require detrimental reliance\u201d by the party asserting the doctrine, \u201cbut is directly grounded instead upon a party\u2019s acquiescence or acceptance of payment or benefits, by virtue of which that party is thereafter prevented from maintaining a position inconsistent with those acts.\u201d Godley v. Pitt County, 306 N.C. 357, 361-62, 293 S.E.2d 167, 170 (1982).\nHere, under the terms of the payment application, CCI received periodic payments under the subcontract with EDCI in exchange for its certified \u201cacknowledg[ment]\u201d that, when it submitted its application, it had \u201cno unsettled change order requests or claims\u201d against EDCI. As the application specifies, the owner of the project and EDCI, as the prime contractor, as well as others, intended to \u201crel[y]\u201d on \u201c[t]his certification.\u201d Having received periodic, CCI is now precluded from asserting the claims which it expressly \u201cacknowledge [d]\u201d that it did not have as a condition of payment.\nWhile Judge Gessner granted EDCI\u2019s motion for partial summary judgment on CCI\u2019s unreserved pre-21 June 2001 claims on the basis that CCI had waived and released these claims, our Supreme Court has explained that \u201c[i]f the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal.\u201d Shore v. Brown, 324 N.C. 427, 428, 378 S.E.2d 778, 779 (1989). The trial court\u2019s entry of partial summary judgment on CCI\u2019s claims is, consequently, affirmed.\nFinal Judgment\nBoth CCI and EDCI challenge Judge Hobgood\u2019s final judgment adopting, with modifications, the referee\u2019s report. Where, as here,\n\u201cexceptions are taken to a referee\u2019s findings of fact and law, it is the duty of the [trial] judge to consider the evidence and give his own opinion and conclusion, both upon the facts and the law. He is not permitted to do this in a perfunctory way, but he must deliberate and decide as in other cases \u2014 use his own faculties in ascertaining the truth and form his own judgment as to fact and law. This is required not only as a check upon the referee and a safeguard against any possible errors on his part, but because he cannot review the referee\u2019s findings in any other way.\u201d\nQuate v. Caudle, 95 N.C. App. 80, 83, 381 S.E.2d 842, 844 (1989) (quoting Thompson v. Smith, 156 N.C. 345, 346, 72 S.E. 379, 379 (1911)) (emphasis omitted). \u201cAfter conducting this review, the trial court may adopt, modify, or reject the referee\u2019s report in whole or in part, remand the proceedings to the referee, or enter judgment.\u201d Gaynor v. Melvin, 155 N.C. App. 618, 622, 573 S.E.2d 763, 766 (2002); N.C. R. Civ. P. 53(g)(2).\nIn reviewing the trial court\u2019s judgment entered on the referee\u2019s report, \u201cthe findings of fact by a referee, approved by the trial [court], are conclusive on appeal if supported by any competent evidence.\u201d Trucking Lines, v. Insurance Corp., 250 N.C. 732, 733, 110 S.E.2d 293, 294 (1959) (per curiam). Similarly as the trial court has the authority to affirm, modify or disregard the referee\u2019s findings and make its own findings upon review of the parties\u2019 exceptions to the referee\u2019s report, different or additional findings by the court are binding on appeal if they are supported by competent evidence. Hughes v. Oliver, 228 N.C. 680, 686, 47 S.E.2d 6, 10 (1948); Biggs v. Lassiter, 220 N.C. 761, 769-70, 18 S.E.2d 419, 423-24 (1942). Any conclusions of law made by the referee, however, are reviewed de novo by the trial court, and the trial court\u2019s conclusions are reviewed de novo by the appellate court. See U.S. Energy Corp. v. Nukem, Inc., 400 F.3d 822, 830 (10th Cir. 2005) (\u201cAlthough this court has not previously stated a standard of review for a district court\u2019s review of a special master\u2019s legal conclusions, since the district court\u2019s review is de novo, it follows that we in turn would review the district court\u2019s legal conclusions de novo.\u201d).\nA. Statute of Limitations\nEDCI first contends that the referee erroneously concluded that CCI timely filed suit within the three-year statute of limitations provided by N.C. Gen. Stat. \u00a7 1-52(1) (2009). CCI counters, however, that EDCI should be equitably estopped from asserting the statute of limitations as a defense to its claims.\nAs this Court has explained, \u201ca defendant may properly rely upon a statute of limitations as a defensive shield against \u2018stale\u2019 claims, but may be equitably estopped from using a statute of limitations as a sword, so as to unjustly benefit from his own conduct which induced a plaintiff to delay filing suit.\u201d Friedland v. Gales, 131 N.C. App. 802, 806, 509 S.E.2d 793, 796 (1998). The doctrine of equitable estoppel may apply to bar a party from relying on a statute of limitations defense when the delay in initiating an action was induced by acts, representations, or conduct that would constitute a breach of good faith. Nowell v. Tea Co., 250 N.C. 575, 579, 108 S.E.2d 889, 891 (1959). \u201cThere need not be actual fraud, bad faith, or an intent to mislead or deceive for the doctrine of equitable estoppel to apply.\u201d Gore v. Myrtle/Mueller, 362 N.C. 27, 33, 653 S.E.2d 400, 405 (2007). Rather, \u201c \u2018[i]t is the subsequent inconsistent position, and not the original conduct],] that operates to the injury of the other party.\u2019 \u201d Hamilton v. Hamilton, 296 N.C. 574, 576-77, 251 S.E.2d 441, 443 (1979) (quoting H. McClintock, Equity \u00a7 31 (2d ed. 1948)). The \u201cbasic question\u201d in determining whether the doctrine of equitable estoppel operates to bar a defendant from relying on the statute of limitations as a defense is whether the \u201cdefendant\u2019s actions have lulled [the] plaintiff into a false sense of security and so induced [the plaintiff] not to institute suit in the requisite time period.\u201d Turning Point Indus. v. Global Furn., Inc., 183 N.C. App. 119, 125-26, 643 S.E.2d 664, 668 (citation and internal quotation marks ommitted), disc. review denied, 361 N.C. 575, 651 S.E.2d 563 (2007).\nIn this case, EDCI notified its subcontractors, including CCI, that it intended to submit a claim for additional compensation with UNCH and the State Construction Office. EDCI solicited claims from its subcontractors to be aggregated and passed through to UNCH for settlement. CCI submitted a verified claim on 28 March 2003, which included claims for extra/changed work, delay/disruption, and inefficiency damages. On 1 July 2003, EDCI submitted CCI\u2019s claim \u201cin its entirety\u201d to UNCH, and notified CCI on 12 August 2003 that its claim had been passed through to the State. While EDCI was pursuing the aggregated claim, EDCI sent a letter to CCI encouraging CCI not to file suit against EDCI in order to present a \u201cunified front\u201d to the State during the administrative process.\nEDCI\u2019s affirmative representations that it was pursuing CCI\u2019s claims against the State and that initiating a lawsuit would jeopardize the \u201csuccess[]\u201d of recovery justifiably \u201clulled [CCI] into a false sense of security\u201d and induced CCI\u2019s delaying filing, Turning Point Indus., 183 N.C. App. at 125, 643 S.E.2d at 668 (citation and internal quotation marks omitted), as CCI reasonably believed that EDCI would pass through to CCI any proceeds attributable to its claim from EDCI\u2019s settlements. See Duke Univ. v. Stainback, 320 N.C. 337, 341, 357 S.E.2d 690, 693 (1987) (\u201cStainback is estopped to plead the statute of limitations as a defense. The factual findings indicate a course of conduct by Stainback, through his attorney, which misled Duke. The actions and statements of Stainback\u2019s attorney caused Duke to reasonably believe that it would receive its payment for services rendered once the case between Stainback and Investors was concluded, and such belief reasonably caused Duke to forego [] pursuing its legal remedy against Stainback. The actions and statements of Stainback lulled Duke into a false sense of security.\u201d). EDCI, moreover, acknowledges in its brief to this Court that through its settlement agreements with the project\u2019s designers, it \u201creceived . . . settlement monies\u201d on CCI\u2019s claims. Having obtained, through third party settlements, funds derived from CCI\u2019s claims, EDCI is equitably estopped from asserting the statute of limitations as a defense to those claims. See N.C. State Bar v. Gilbert, 189 N.C. App. 320, 325, 663 S.E.2d 1, 4 (2008) (holding attorney was \u201cequitably estopped from asserting the statute of limitations for conversion\u201d where attorney used clients\u2019 funds for personal expenses without clients\u2019 consent and could \u201cnot unjustly benefit from the [clients]\u2019 delayed discovery\u201d of the conversion). EDCI\u2019s statute of limitations argument is overruled.\nB. Scope of Summary Judgment Order\nEDCI next contends that the referee exceeded the scope of Judge Gessner\u2019s summary judgment order by \u201cpermitting] CCI to submit evidence and recover upon its claims for delay, disruption and inefficiency damages occurring prior to 21 June 2001.\u201d In his order granting partial summary judgment to EDCI, Judge Gessner ruled that: (1) \u201call claims which arose prior to August 20, 2000 have been waived and released by [CCI] and that [CCI] is not entitled to recover any sum for such claims\u201d; and (2) \u201call claims arising after August 20, 2000 through and including June 20, 2001, which were not specifically reserved in [CCI]\u2019s payment applications were waived and released by [CCI] and that [CCI] is not entitled to recover any sum for all such claims not specifically reserved in the payment applications.\u201d\nPrior to this case being referred, the parties disputed the scope of Judge Gessner\u2019s 11 April 2007 summary judgment order \u2014 whether judgment was granted in favor of EDCI on just CCI\u2019s extra/changed work claims arising prior to 21 June 2001 (as argued by CCI), or whether judgment was entered on CCI\u2019s delay/disruption and inefficiency claims, as well as its extra/changed work claims, arising before 21 June 2001 (as advocated by EDCI). After conducting a hearing on a motion in limine filed by EDCI to exclude evidence of the challenged claims, Judge Hobgood entered an order labeled \u201cOrder Granting Defendant\u2019s Motion In Limine to Preclude Plaintiff from Presenting Any Evidence in Connection with Delay, Disruption, or Labor Inefficiency Damages,\u201d in which Judge Hobgood ruled:\n[CCI] shall not be allowed to submit any evidence related to delay, disruption, or labor inefficiency claims and/or damages against [EDCI]. . . . [I]t is not the intent of this Order to preclude [CCI] from presenting evidence of delay, disruption or lost efficiency claims, to the extent that [EDCI] did pass those claims through to third parties, and received payment thereon.\nThe order referring the case to the referee similarly directed the referee to \u201ccomply with the ruling of the Honorable Paul G. Gessner in his Order dated 11 April 2007 . . . .\u201d\nAs reflected in his report, the referee determined that \u201cJudge Gessner\u2019s order is ambiguous on the issue of whether the delay and disruption claims are among the claims that are barred,\u201d considered \u201cextrinsic evidence\u201d in the form of an email sent by Judge Gessner to counsel informing them of his rulings on EDCI\u2019s motion for summary judgment, and concluded that the email \u201csupports the view that these claims are not barred by the order.\u201d As a result, the referee permitted CCI to present evidence on its delay/disruption and inefficiency claims arising on or before 20 June 2001.\nEDCI contends that the \u201cunambiguous\u201d and \u201cunequivocal language\u201d of Judge Gessner\u2019s order \u201cbarred CCI from being entitled to recover on any of its claims, including claims for delay, disruption or inefficiency damages allegedly incurred by CCI on the Project on or before 20 June 2001 . . . .\u201d The interpretation of a court\u2019s judgment or order \u201cpresents a question of law,\u201d which is \u201cfully reviewable on appeal.\u201d Reavis v. Reavis, 82 N.C. App. 77, 80, 345 S.E.2d 460, 462 (1986). Court judgments and orders \u201cmust be interpreted like other written documents, not by focusing on isolated parts, but as a whole.\u201d Id. As with other writings, such as statutes and contracts, where a judgment or order is unambiguous, the court is \u201climited to an interpretation in keeping with the express language of the document and without considering parol evidence.\u201d Bicket v. McLean Securities, Inc., 124 N.C. App. 548, 564, 478 S.E.2d 518, 527(1996), disc. review denied, 346 N.C. 275, 487 S.E.2d 538 (1997); see also Neujahr v. Neujahr, 223 Neb. 722, 728, 393 N.W.2d 47, 51 (1986) (explaining that where decree is unambiguous, its meaning must be \u201cdetermined from [its] four comers\u201d and \u201cneither what the parties thought the judge meant nor what the judge thought he or she meant... is of any relevance\u201d).\nHere, Judge Gessner\u2019s order is unequivocal: it states that \u201call claims\u201d not specifically reserved by CCI arising prior to 21 June 2001 are barred. Consistent with the order\u2019s plain language, we believe that \u201call claims\u201d means precisely that: \u201call claims.\u201d See Financial Servs. of Raleigh, Inc. v. Barefoot, 163 N.C. App. 387, 395, 594 S.E.2d 37, 43 (2004) (\u201c[W]hen the parties stated that they were releasing \u2018all claims of any kind,\u2019 we must construe the release to mean precisely that: an intent to release all claims of any kind in existence.\u201d). The referee, therefore, erred in considering extrinsic evidence regarding the scope of Judge Gessner\u2019s summary judgment order.\nEDCI\u2019s argument, however, ignores Judge Hobgood\u2019s subsequent order in which he grants EDCI\u2019s motion in limine, clarifying that CCI would be permitted to present evidence regarding its delay/disruption and inefficiency claims to the extent that EDCI \u201cpass[ed] th[e]se claims through to third parties, and received payment thereon.\u201d On appeal, EDCI fails to identify and differentiate between those claims that, although initially barred, were properly submitted to the referee due to EDCI\u2019s recovering on them from third parties and those barred claims on which EDCI made no third-party recovery but on which CCI nevertheless presented evidence. Nor does EDCI specify which erroneously considered claims \u2014 if there are any \u2014 were awarded to CCI by the referee. EDCI, as the appellant on this issue, bears the burden of \u201cnot only... showing] error, but also ... enabling] th[is] Court to see that [it] was prejudiced and that a different result would have likely ensued had the error not occurred.\u201d Hasty v. Turner, 53 N.C. App. 746, 750, 281 S.E.2d 728, 730 (1981) (emphasis added). EDCI has failed to satisfy this burden on appeal.\nC. Prejudgment Interest\nEDCI next contends that Judge Hobgood erred in awarding CCI prejudgment interest on certain \u201cdisputed\u201d breach of contract claims. In his report, the referee determined:\n194. Prejudgment interest is not an entitlement. Even though the referee has found in favor of CCI on many claims, he has concluded that many of CCI\u2019s claims are not justified, and CCI itself reduced its claims over the extended life of this case significantly. EDCI had legitimate defenses and a legitimate basis to withhold most of the funds it withheld. Neither party is a \u201cprevailing party\u201d and the referee would not tax prejudgment interest as a cost except as stated below.\n195. The referee believes that CCI\u2019s subcontract balance of $369,951, as computed by EDCI, was undisputed as of November 3, 2005. It should bear interest at the judgment rate from that date in the amount of $109,140.\nCCI noticed an exception to this ruling by the referee and Judge Hobgood modified the report in his final judgment, \u201cconclud[ing] that [CCI] is entitled to interest at the judgment rate on that portion of the net amount that was not \u2018undisputed,\u2019 from the date of the breach, November 3, 2005.\u201d\nIn breach of contract actions, N.C. Gen. Stat. \u00a7 24-5(a) (2009) \u201cauthorizes the award of pre-judgment interest on damages from the date of the breach at the contract rate, or the legal rate if the parties have not agreed upon an interest rate.\u201d Members Interior Construction v. Leader Construction Co., 124 N.C. App. 121, 125, 476 S.E.2d 399, 402 (1996), disc. review denied, 345 N.C. 754, 485 S.E.2d 56 (1997). EDCI contends that Judge Hobgood erred in awarding prejudgment interest on the \u201cdisputed\u201d contract claims, relying on this Court\u2019s holing in Lawrence v. Wetherington, 108 N.C. App. 543, 550, 423 S.E.2d 829, 833 (1993) (citing Rose v. Materials Co., 282 N.C. 643, 194 S.E.2d 521 (1973)), that \u201c[a]s a general rule, in breach of contract cases, pre-judgment interest (from the date of breach) may be allowed only where the amount of the claim is obvious or ascertainable from the contract itself.\u201d Because, EDCI argues, the amounts involved in the \u201cdisputed\u201d claims \u201cwere not ascertainable solely from the terms of the contract[,]\u201d Judge Hobgood should not have awarded prejudgment interest on these claims.\nThe Lawrence Court, in stating its \u201crule,\u201d relied upon the Supreme Court\u2019s holding in Rose, 282 N.C. at 671, 194 S.E.2d at 540 (quoting General Metals v. Manufacturing Co., 259 N.C. 709, 713, 131 S.E.2d 360, 363 (1963)): \u201c \u2018When the amount of damages in a breach of contract action is ascertained from the contract itself, or from relevant evidence, or from both, interest should be allowed from the date of the breach.\u2019 \u201d This Court has explained, however, that the rule set out in General Metals was superseded by the General Assembly\u2019s amendment to N.C. Gen. Stat. \u00a7 24-5(a) in 1985:\nPrior to its amendment in 1985, G.S. \u00a7 24-5(a) provided that \u2018[a]ll sums of money due by contract of any kind... shall bear interest.\u2019 The statute did not address the date from which the courts were to apply interest. To fill this void, our appellate courts developed the rule that \u2018[w]hen the amount of damages in a breach of contract action is ascertained from the contract itself, or from relevant evidence, or from both, interest should be allowed from the date of breach.\u2019 General Metals v. Truitt Manufacturing Co., 259 N.C. 709, 713, 131 S.E.2d 360, 363 (1963)[.] . . .\nThe legislature amended G.S. \u00a7 24-5(a) in 1985 to provide that \u2018[i]n an action for breach of contract, . . . the amount awarded on the contract bears interest from the date of breach.\u2019 Subsequently, in Steelcase, Incorporated v. The Lilly Company, this Court noted that, as amended, G.S. \u00a7 24-5(a) \u2018clearly provides for interest from the date of breach in breach of contract actions.\u2019 Steelcase, Inc. v. The Lilly Co., 93 N.C. App. 697, 703, 379 S.E.2d 40, 44, disc. review denied, 325 N.C. 276, 384 S.E.2d 530 (1989).\nHere, both parties tailor their arguments to the case law developed prior to the 1985 amendment and the rule quoted from General Metals. However, it is clear to this Court that resort to that rule, developed, only to determine the date from which to apply interest, is no longer necessary. When the legislature amended the statute, and provided a time from which to apply interest, it obviated any need for the rule. In doing so, it removed the confusing questions of ascertainment and certainty that so often muddled the statute\u2019s application.\nMetromont Materials Corp. v. R.B.R. & S.T., 120 N.C. App. 616, 617-18, 463 S.E.2d 305, 306-07 (1995) (internal citation omitted) (emphasis added), disc. review denied, 342 N.C. 895, 467 S.E.2d 903 (1996).\nAfter the 1985 amendment to N.C. Gen. Stat. \u00a7 24-5(a), \u201c[o]nce the relevant facts have been established entitling the party to damages, interest is awarded as a matter of law.\u201d Metromont, 120 N.C. App. at 618, 463 S.E.2d at 307; accord Cap Care Grp., Inc. v. McDonald, 149 N.C. App. 817, 824, 561 S.E.2d 578, 583 (\u201cOnce breach is established, plaintiffs are entitled to interest from the date of the breach as a matter of law.\u201d), disc. review denied, 356 N.C. 611, 574 S.E.2d 676 (2002).\nHere, the referee found that EDCI breached the subcontract with CCI on 3 November 2005 when EDCI notified CCI by letter that it would not pass through to CCI any funds EDCI had recovered through its settlement agreement with UNCH. In a footnote in its brief, EDCI asserts that this date is \u201cincorrect\u201d as EDCI did \u201cnot receive[] any settlement monies on [these] claims until\u201d it settled with HKS and SSR on 21 December 2005 and CRZ on 11 January 2007. EDCI, however, did not notice an exception to the referee\u2019s finding that the breach occurred on 3 November 2005 and raised the issue for the first time in its motion to amend the final judgment. A motion to amend judgment, however, \u201ccannot be used as a means to reargue matters already argued or to put forth arguments which were not made but could have been made\u201d at the trial court level. Smith v. Johnson, 125 N.C. App. 603, 606, 481 S.E.2d 415, 417 (1997). By failing to contest the referee\u2019s finding regarding the date of breach, EDCI waived review of that determination by the trial court and this Court. See State ex rel. Gilchrist v. Cogdill, 74 N.C. App. 133, 136, 327 S.E.2d 647, 649 (1985) (\u201cIn the absence of exceptions to the factual findings of the referee, the findings are conclusive . . . .\u201d).\nEDCI also contends that the award of prejudgment interest was erroneous because it had legitimate defenses and justifiable grounds to withhold most of the funds that it withheld during this lawsuit. This contention also has been rejected by this Court: \u201cWe are unaware of any appellate interpretation which holds that N.C. Gen. Stat. \u00a7 24-5(a) has a \u2018good faith\u2019 exception. Indeed, the plain language of the statute indicates otherwise.\u201d Salvaggio v. New Breed Transfer Corp., 150 N.C. App. 688, 692, 564 S.E.2d 641, 644 (2002). EDCI\u2019s arguments regarding prejudgment interest are overruled.\nD. Delay Damages\nWith respect to its own claims presented to the referee, EDCI contends that Judge Hobgood erred in overruling its exception to the referee\u2019s determination that EDCI was not entitled to recover delay damages from CCI for a 12.5 week delay at the end of the project. In his report, the referee found that as the project expeditor, \u201cEDCI was significantly delayed and disrupted by causes attributable to the owner and the designers . . . .\u201d For roughly 12.5 weeks during the delay (25 September 2001 through 21 December 2001), \u201cCCI\u2019s work relating to fire rated walls and vapor barrier installation\u201d concurrently delayed completion of the project. After the project was complete, EDCI submitted to the owner and project designers verified claims, including a claim for delay damages stemming from the September-December 2001 period. During the settlement negotiations, \u201cthe owner and designers cited issues attributable to CCI in contesting EDCI\u2019s delay and disruption claims[,]\u201d which ultimately \u201ccontributed to [EDCI\u2019s] decision to compromise its claims\u201d against the owner and designers.\nAs part of the proceedings before the referee, EDCI submitted a backcharge for \u201cdelay damages against CCI for 116 days associated with the fire rated wall issues.\u201d The referee determined that the 12.5 week delay was \u201ca CCI-caused critical path delay that [wa]s concurrent with owner-caused delays[.]\u201d Concluding that \u201cthis was a concurrent delay,\u201d the referee denied EDCI\u2019s claim for damages.\nEDCI argues on appeal, as it did before the trial court, that the referee incorrectly \u201cappl[ied] the theory of \u2018concurrent delay\u2019 to deprive [EDCI] of its rightful damages from and against CCI based on the delays that CCI caused concurrently with [UNCH].\u201d EDCI\u2019s damages theory is premised on its assertion that \u201c[EDCI] would have recovered from UNCH and HKS for owner and architect-caused delays between September and December of 2001, but for CCI\u2019s defective construction of the fire-rated walls which concurrently delayed the Project during this same period of time.\u201d Under the construction law principle of \u201cconcurrent delay,\u201d where two or more parties proximately contribute to the delay of the completion of the project, none of the parties may recover damages from the other delaying parties, \u201cunless there is proof of clear apportionment of the delay and expense attributable to each party.\u201d Biemann & Rowell Co. v. Donohoe Cos., 147 N.C. App. 239, 245, 556 S.E.2d 1, 5 (2001) (citing Blinderman Const. Co., Inc. v. United States, 695 F.2d 552, 559 (Fed. Cir. 1982)).\nApplied here, the principle of concurrent delay only precludes CCI, UNCH, and HKS from recovering delay damages from each other (in the absence of proof of apportionment); it does not, however, operate to bar EDCI\u2019s delay claim against CCI, since EDCI was \u2014 as the referee found \u2014 not responsible for any portion of the delay. Judge Hobgood, therefore, erred in overruling EDCI\u2019s exception to the referee\u2019s conclusion that the principle of concurrent delay operated to bar EDCI\u2019s delay damages claim against CCI. EDCI, however, as the appellant, \u201cmust not only show error, but also that the error is material and prejudicial, amounting to a denial of a substantial right and that a different result would have likely ensued.\u201d Cook v. Southern Bonded, Inc., 82 N.C. App. 277, 281, 346 S.E.2d 168, 171 (1986).\nAs CCI points out, the referee found \u2014 and EDCI does not dispute \u2014 that EDCI recovered in its settlements with the project designers some amounts \u201cnecess[arily] . . . attributable\u201d to its delay claim. In fact, in a footnote in its brief, EDCI admits that it recovered some amount of money from HKS, SSR, and CRZ on its claim. On appeal, EDCI fails to point to any evidence it presented as to how much it recovered from the designers on its delay claim. Without any evidence identifying the amount EDCI recovered from the designers, it is impossible to determine how much, if any, EDCI is entitled to recoup from CCI without obtaining a double recovery. See Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C. App. 443, 455, 481 S.E.2d 349, 357 (1997) (\u201cSimply put, although plaintiff is entitled to full recovery for its damages, plaintiff is nevertheless not entitled to \u2018double recovery\u2019 for the same loss or injury.\u201d (internal citations omitted)).\nEDCI nonetheless argues that \u201c[w]hile the concurrent delay caused by CCI precluded [EDCI] from collecting its delay claims from the Owner and Architect, it should not . . . prevent [EDCI] from recovering] . . . those damages directly from the party who actually caused the concurrency \u2014 namely, CCI.\u201d EDCI, however, fails to cite any authority \u2014 and we have found none \u2014 supporting the proposition that CCI is fully liable for EDCI\u2019s delay damages despite being only partially responsible for the delay. EDCI mischaracterizes its injury as being the \u201cconcurrency\u201d of the delay rather than as the net effect of the delay itself. This argument is overruled.\nE. Recovery Costs\nCCI also appeals from the final judgment, contending that Judge Hobgood erred in overruling its exception to the referee\u2019s requiring CCI to \u201cshare\u201d the costs EDCI incurred in pursuing CCI\u2019s delay and disruption claims against the owner and designers of the project:\nCCI should ... share in the costs of pursuing the claim [s]. But for EDCI\u2019s pursuit of the claims, CCI would have recovered nothing on them. Indeed, CCI\u2019s claim[s] . . . against the designers were likely time-barred. EDCI\u2019s fees represented 16% of its total recovery. CCI\u2019s recovery on th[ese] claim[s] must be reduced by 16%, or $165,933, representing a portion of the fees incurred by EDCI i[n] pursuing the claimjs]. Accordingly, CCI\u2019s total recover on these claims is $871,150.\nCCI, relying on the subcontract\u2019s integration clause, contends that because the subcontract does not include any express provision for the \u201csharing\u201d of costs in pursuing claims against third parties, \u201cthe Referee should not have reduced CCI\u2019s recovery for delay and disruption for \u2018costs\u2019 incurred by [EDCI].\u201d Indeed, the referee noted in several places in his report that CCI had \u201centered into no agreement with EDCI relating to the sharing of the costs ... of EDCI\u2019s claims.\u201d\nEDCI, acknowledging that there is no explicit contractual provision providing for the sharing of recovery costs, relies on the \u201cdoctrine of implication of unexpressed terms,\u201d which provides that a contract \u201cencompasses not only its express provisions but also all such implied provisions as are necessary to effect the intention of the parties unless express terms prevent such inclusion.\u201d Lane v. Scarborough, 284 N.C. 407, 410, 200 S.E.2d 622, 624 (1973) (citing 4 Williston, Contracts \u00a7 601B (3d ed. 1961)). The Lane Court elaborated on the doctrine, stating:\n\u201cIf it can be plainly seen from all the provisions of the instrument taken together that the obligation in question was within the contemplation of the parties when making their contract or is necessary to carry their intention into effect, the law will imply the obligation and enforce it. The policy of the law is to supply in contracts what is presumed to have been inadvertently omitted or to have been deemed perfectly obvious by the parties, the parties being supposed to have made those stipulations which as honest, fair, and just men they ought to have made.\u201d\nId. at 410-11, 200 S.E.2d at 625 (quoting 17 Am. Jur. 2d Contracts \u00a7 255 (1964)).\nEDCI argues that a \u201csharing\u201d provision should be incorporated into the subcontract by implication because it is \u201cstandard construction industry practice\u201d that the costs incurred by a general contractor in pursuing third party claims that ultimately benefit a subcontractor are passed through to the subcontractor. EDCI maintains that, \u201cas sophisticated parties well-versed in standard construction practice,\u201d EDCI and CCI must have been \u201caware\u201d at the time of executing the subcontract that any such recovery costs would be passed through to CCI. It is well established that \u201ca lawful and existent business custom or usage, clearly established, concerning the subject-matter of a contract, may be received in evidence to explain ambiguities therein, or to add stipulations about which the contract is silent. . . .\u201d Cohoon v. Harrell, 180 N.C. 39, 41, 103 S.E. 906, 906 (1920) (emphasis added). Where the \u201ccustom is known to the parties, or its existence is so universal and all-prevailing that knowledge will be imputed, the parties will be presumed to have contracted in reference to it, unless excluded by the express terms of the agreement between them.\u201d Id.\nAs CCI points out, EDCI did not present any evidence in the numerous hearings before the referee regarding any construction industry custom regarding the \u201csharing\u201d of recovery costs or CCI\u2019s actual or constructive knowledge of the purported custom. EDCI, apparently recognizing the lack of evidence on the issue, asserts that the referee, who was selected based on his \u201cexpertise in public construction law and accounting,\u201d was \u201cwell within his authority to conclude that the costs incurred by [EDCI] in prosecuting its claim should have been shared by CCI in accordance with accepted industry custom and practice.\u201d While EDCI is correct that \u201c[l]ong-established customs and usages are to be judicially recognized as part of the law[,]\u201d Hamilton v. R. R., 200 N.C. 543, 557, 158 S.E. 75, 83 (1931), where, as here, \u201cno evidence [i]s introduced as to usage or custom\u201d and the fact-finder \u201cdid not, nor was it requested to, take judicial notice of any [custom or] usage,\u201d reliance on the doctrine of custom and usage is \u201cnot appropriate.\u201d Peterson v. McCarney, 254 N.W.2d 438, 444 (N.D. 1977); see also Katz v. Brooks, 65 Ill. App. 2d 155, 160, 212 N.E.2d 508, 511 (1965) (\u201cThe existence of the custom or usage must be proved as any other matter of fact and the burden is on the party asserting it.\u201d (internal citation omitted)); Clark Adver. Agency, Inc. v. Avco Broad. Corp., 178 Ind. App. 451, 455, 383 N.E.2d 353, 355 (1978) (\u201cOf course, he who would avail himself of a custom or usage has the burden to establish its existence.\u201d (citation and internal quotation marks omitted)).\nHere, there is simply no evidence in the record regarding (1) the existence of a customary practice in the construction industry concerning the sharing of recovery costs or (2) CCI\u2019s actual or constructive knowledge of such a custom. The referee did not take judicial notice of any custom; nor did EDCI request that he take judicial notice of the custom. The referee, moreover, failed to make any findings on these issues \u2014 he simply concluded, without any explanation of his rationale, that CCI should \u201cshare\u201d in the costs. Without having taken judicial notice of the custom or having received any evidence on the practice, the referee\u2019s determination lacks the necessary support to be upheld on appeal under our standard of review. Compare Crown Co. v. Jones, 196 N.C. 208, 211, 145 S.E. 5, 6 (1928) (\u201cAs the record discloses that there was evidence to be considered by the referee of a verbal agreement and of a general custom of the trade, his findings of fact, having been approved by the trial judge, determine the controversy.\u201d). The trial court, therefore, erred in overruling CCI\u2019s exception.\nEDCI alternatively argues that if we \u201cdo[] not affirm the trial court\u2019s adoption of the Referee\u2019s finding to imply the existence of a term requiring [recovery] costs to be proportionally paid by CCI,\u201d we should remand the case to the trial court for the parties to present evidence on the existence and extent of any customary practices in the construction industry concerning the sharing of recovery costs. EDCI, however, fails to cite any authority in support of the proposition that a party is entitled to remand on an issue on which that party bore the burden of proof at trial and where that party elected not to present any evidence on the issue.\nConclusion\nIn sum, we conclude that Judge Gessner properly granted partial summary judgment on CCI\u2019s extra/changed work, delay/disruption, and inefficiency claims. With respect to EDCI\u2019s appeal from Judge Hobgood\u2019s final judgment entered on the referee\u2019s report, we conclude that EDCI is equitably estopped from asserting the statute of limitations as a defense to those claims it \u201cpassed through\u201d to third parties for settlement. With respect to CCI\u2019s production of evidence on its delay/disruption and inefficiency claims, EDCI has failed to demonstrate prejudice. As for EDCI\u2019s arguments concerning the imposition of prejudgment interest, Judge Hobgood correctly modified the referee\u2019s report to include the interest. EDCI has failed to demonstrate prejudice resulting from Judge Hobgood\u2019s denial of its claim for concurrent delay damages. With respect to CCI\u2019s appeal from final judgment, we conclude that the referee\u2019s determination that CCI is required to proportionally share EDCI\u2019s recovery costs is not supported by the evidence or the referee\u2019s findings. Accordingly, the final judgment is affirmed in part and reversed in part.\nAffirmed in part; reversed in part.\nJudges CALABRIA and ELMORE concur.\n. As the parties lump all of these claims together in their respective arguments, unless specified, we do not attempt to differentiate between them in addressing the parties\u2019 contentions.\n. To the extent that CCI failed to preserve its equitable estoppel argument for appellate review by not noticing an exception to the referee\u2019s determination that the doctrine did not preclude EDCI from asserting the defense, we exercise our discretion under Rule 2 of the Rules of Appellate Procedure in order to prevent manifest injustice to CCI and suspend the requirements of Rule 10(a). See Potter v. Homestead Preservation Assn., 330 N.C. 569,576, 412 S.E.2d 1,5 (1992) (suspending appellate rules to consider plaintiff\u2019s dismissed claim where record reflected parties and trial court operated under \u201cerroneous]] assumption]\u201d regarding statute of limitations).",
        "type": "majority",
        "author": "HUNTER, Robert C., Judge."
      }
    ],
    "attorneys": [
      "Jordon Price Wall Gray Jones & Carlton, PLLC, by Henry W. Jones, Jr. and Brian S. Edlin; and Chamberlain, Hrdlicka, White, Williams & Martin, by Seth R. Price, Atlanta, Georgia, pro hac vice, for plaintiff.",
      "Nigle B. Barrow, Jr.; and Hendrick Phillips Salzman & Flatt, by Martin R. Salzman, Atlanta, Georgia, pro hac vice, for defendants Ellis-Don Construction, Inc., Federal Insurance Company, and The Travelers Casualty and Surety Company."
    ],
    "corrections": "",
    "head_matter": "CLEVELAND CONSTRUCTION, INC., Plaintiff v. ELLIS-DON CONSTRUCTION, INC.; HKS, INC.; STATE OF NORTH CAROLINA THROUGH THE UNIVERSITY OF NORTH CAROLINA HEALTH CARE SYSTEM; THE UNIVERSITY OF NORTH CAROLINA HOSPITALS AT CHAPEL HILL; FEDERAL INSURANCE COMPANY; THE TRAVELERS CASUALTY AND SURETY COMPANY f/k/a THE AETNA CASUALTY AND SURETY COMPANY, Defendants\nNo. COA10-525\n(Filed 5 April 2011)\n1. Estoppel\u2014 quasi-estoppel \u2014 received periodic payments without conditions \u2014 construction claims\nThe trial court did not err in a construction claims case by granting partial summary judgment in favor of defendant EDCI on plaintiff CCI\u2019s extra/changed work, delay/disruption, and inefficiency claims. Based on the doctrine of quasi-estoppel, CCI was precluded from asserting the claims which it expressly acknowledged that it did not have as a condition of payment when it received periodic payments based on the applications submitted.\n2. Estoppel\u2014 equitable estoppel \u2014 improper assertion of statute of limitations defense\nThe referee did not err in a construction claims case by concluding that plaintiff CCI timely filed suit within the three-year statute of limitations provided by N.C.G.S. \u00a7 1-52(1). Having obtained, through third party settlements, funds derived from CCI\u2019s claims, EDCI was equitably estopped from asserting the statute of limitations as a defense to those claims.\n3. Evidence\u2014 extrinsic evidence \u2014 referee exceeded scope of trial court\u2019s summary judgment order\nThe referee erred in a construction claims case by considering extrinsic evidence regarding the scope of the trial court\u2019s summary judgment order for the claims of delay, disruption, and inefficiency damages occurring prior to 21 June 2001. The trial court\u2019s order unequivocally stated that all claims not specifically reserved by CCI arising prior to 21 June 2001 were barred.\n4. Interest\u2014 prejudgment \u2014 breach of contract claims \u2014 waiver\nThe trial court did not err by awarding plaintiff CCI prejudgment interest on disputed breach of contract claims from the date of 3 November 2005. After the 1985 amendment to N.C.G.S. \u00a7 24-5(a), interest is awarded as a matter of law once the relevant facts have been established entitling the party to damages. By failing to contest the referee\u2019s finding regarding the date of breach, defendant EDCI waived review of that determination.\n5. Construction Claims\u2014 delay damages \u2014 concurrent delay\u2014 partial responsibility\nThe trial court erred in a construction claims case by overruling defendant EDCI\u2019s exceptions to the referee\u2019s determination that EDCI was not entitled to recover delay damages from plaintiff CCI for a 12.5 week delay at the end of the project based on the principle of concurrent delay because EDCI was found to be not responsible for any portion of the delay. However, there was no authority supporting the proposition that CCI was fully liable for EDCI\u2019s delay damages despite being only partially responsible for the delay.\n6. Construction Claims\u2014 delay and disruption \u2014 cost sharing\u2014 doctrine of implication of unexpressed terms \u2014 customary practice\nThe trial court did not err in a construction claims case by overruling its exception to the referee\u2019s requirement that plaintiff CCI share the costs defendant EDCI incurred in pursuing CCI\u2019s delay and disruption claims against the owner and designers of the project based on the doctrine of implication of unexpressed terms. There was no evidence regarding the existence of a customary practice in the construction industry concerning the sharing of recovery costs or CCI\u2019s actual or constructive knowledge of such a custom.\nAppeal by plaintiff from order entered 11 April 2007 by Judge Paul G. Gessner and by plaintiff and defendants from judgment entered 1 December 2009 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 17 November 2010.\nJordon Price Wall Gray Jones & Carlton, PLLC, by Henry W. Jones, Jr. and Brian S. Edlin; and Chamberlain, Hrdlicka, White, Williams & Martin, by Seth R. Price, Atlanta, Georgia, pro hac vice, for plaintiff.\nNigle B. Barrow, Jr.; and Hendrick Phillips Salzman & Flatt, by Martin R. Salzman, Atlanta, Georgia, pro hac vice, for defendants Ellis-Don Construction, Inc., Federal Insurance Company, and The Travelers Casualty and Surety Company."
  },
  "file_name": "0522-01",
  "first_page_order": 530,
  "last_page_order": 552
}
