Warren Bros. v. North Carolina Department of Transportation, 64 N.C. App. 598 (1983)

Oct. 18, 1983 · North Carolina Court of Appeals · No. 8221SC1159

64 N.C. App. 598

WARREN BROTHERS COMPANY, a division of Ashland Oil, Inc. v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION

No. 8221SC1159

(Filed 18 October 1983)

Highways and Cartways 8 9— highway construction contract — no right of action by subcontractor

Where a highway construction contract provided that a subcontractor could not assert a claim against defendant Department of Transportation, the contractor could not assert a claim against defendant on behalf of its subcontractor.

Appeal by plaintiff from Rousseau, Judge. Judgment entered 23 July 1982 in Superior Court, Forsyth County. Heard in the Court of Appeals 27 September 1983.

This is a civil action upon a highway construction contract in which plaintiff seeks to recover on behalf of Lancaster Brothers, Inc. (hereinafter Lancaster), a subcontractor, because of difficulties encountered by Lancaster in installing guardrails. Plaintiff sued alleging among other things:

11. Upon information and belief, the total reasonable and additional costs incurred to perform the work at the Project . . . amount to $52,442.12, and Lancaster is entitled to recover said amount from the Defendant through the Plaintiff.

17. Upon information and belief, the Defendant owes Lancaster through the Plaintiff the additional sum of $1,394.57.

21. Upon information and belief, Lancaster has been damaged by the retention of $28,800.00 in liquidated damages by the Defendant and Lancaster is entitled to have said sum remitted to it.

On 12 March 1982 the defendant moved to dismiss the complaint pursuant to Rule 17, North Carolina Rules of Civil Procedure, for failure to prosecute in the name of the real party in interest. The motion was denied on 23 July 1982. Following the denial of the motion and with the consent of both parties, the trial court heard an oral motion by the defendant for summary judgment pursuant to Rule 56, North Carolina Rules of Civil Procedure. The court, after reviewing the pleadings and discovery conducted, granted summary judgment for the defendant.

From entry of summary judgment for the defendant, plaintiff appealed. The defendant cross-appealed from the denial of its motion to dismiss under Rule 17 and from an earlier ruling denying a motion to quash an alias and pluries summons.

Miller, Johnston, Taylor & Allison, by Robert J. Greene, Jr., for the plaintiff, appellant.

Attorney General Rufus L. Edmisten, by Assistant Attorney General Blackwell M. Brogden, Jr., for the defendant, appellee, cross-appellant.

HEDRICK, Judge.

Plaintiff’s Appeal

Summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C. Rules Civ. Proc. 56(c). Where the pleadings or proof of either party disclose that no claim or defense exists, summary judgment is proper. McNair v. Boyette, 282 N.C. 230, 192 S.E. 2d 457 (1972). In such cases the claim or defense of a party is said to be insurmountably barred. See e.g., Jones v. City of Greensboro, 51 N.C. App. 571, 277 S.E. 2d 562 (1981). Our examination of the record in the instant case discloses such a bar to plaintiffs claim and dictates that the trial court’s grant of summary judgment for defendant be affirmed.

It is undisputed that plaintiff brings this action on behalf of its subcontractor, Lancaster, and that any recovery by plaintiff from defendant will inure to the benefit of Lancaster. Also undisputed is that the contract entered into by plaintiff and defendant contains the following provision:

The Contractor shall not sublet, sell, transfer, assign, or otherwise dispose of the contract or any portion thereof, or of his right, title or interest therein, without written consent of the Engineer. . . . The approval of any subcontract will not release the Contractor of his liability under the contract and bonds, nor will the Sub-contractor have any claim against the Commission (now NCDOT) by reason of the approval of the subcontract.

Under this provision, Lancaster has no claim against the defendant; plaintiff thus has no claim on behalf of Lancaster. Because the record discloses an insurmountable bar to any claim by plaintiff on behalf of Lancaster, summary judgment for defendant was proper.

Plaintiff cites Blount Bros. Constr. Co. v. United States, 348 F. 2d 471 (Ct. Cl. 1965) and Seger v. United States, 469 F. 2d 292 (Ct. Cl. 1972) in support of its argument that summary judgment was inappropriate. We find these cases inapposite. The contract in the instant case provides that plaintiffs subcontractor may not assert a claim against the defendant. The subcontractor may not do indirectly through plaintiff what it could not do directly by suit against the defendant.

DEFENDANT’S APPEAL

The defendant’s appeal is moot upon the affirmation of summary judgment in its favor.

Affirmed.

Judges WEBB and Hill concur.