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Tag Archives: Contract

Civil Practice – Subject Matter Jurisdiction – Tort/Negligence – STCA – Contract (access required)

Brown v. N.C. Department of Transportation Plaintiff’s assertion that defendant’s agents and employees engaged in “poor driveway construction practice” may state a claim that defendant breached its contract to reconfigure and reconnect plaintiff’s driveway as part of its highway project, but it does not state a claim for negligence under the State Tort Claims Act.

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Labor & Employment – Contract – Restrictive Covenants – Civil Practice – Preliminary Injunction (access required)

Aeroflow, Inc. v. Arias The non-competition clause in the employment contract between plaintiff and its former employee is unenforceable because it attempts to restrict the former employee from too many types of jobs; plaintiff has failed to show that its former employee acquired and misused trade secrets; plaintiff has not shown that firing a sales representative for not meeting his goals is a termination “for cause” within the meaning of the employment contract, so plaintiff has not proven that the contract’s non-solicitation provision applies; and the former employee discussed an outside opportunity with one of plaintiff’s current employees, who did not quit, so plaintiff has not proven it was damaged by a breach of the employee-interference provision of the contract.

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Contract – Damages – Nominal – Unfair Trade Practices – Civil Practice – Appeals – Commercial Sport Fishing Boat (access required)

D G. II, LLC v. Nix The trial court ruled before trial that plaintiff was entitled to the return of its $100,000 deposit; at trial, the jury was entitled to discount the testimony of witnesses who said the boat that defendants built for plaintiff was worth $250,000 more than the contract price. Although the jury should have awarded plaintiff nominal damages on its breach of contract claim, we will not remand for the sole purpose of an award of nominal damages.

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Contract – Construction Project – Subcontractor — Completion Certification – Interest & Attorney’s Fees (access required)

Miller & Long, Inc. v. Intracoastal Living, LLC The plaintiff-subcontractor and the defendant-contractor built four buildings in the project at issue. As to the first two buildings, the contractor’s project manager certified to the project owner that the subcontractor’s work on the buildings was 100 percent complete on June 1, 2007, and the project architect made the same certification. The contractor cannot change its position at this late date and has waived any challenges to the subcontractor’s work on the first two buildings. The subcontractor’s motion for partial summary judgment against the contractor is granted in part.

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Contract – Construction Project – Subcontract – Time for Payment – Reasonable Time – Three Years (access required)

RJM Plumbing, Inc. v. Superior Construction Corp. When the parties’ contract does not set a time for payment, the issue of what is a reasonable time for payment is a mixed question of law and fact. Without extenuating circumstances or even an explanation by the defendant-general contractor, it would be unreasonable as a matter of law to expect the plaintiff-subcontractor to wait three years to be paid for its work. The subcontractor’s motion for partial summary judgment against the general contractor is granted.

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Contract – Implied – Insufficient Showing – Construction Project – Subcontract Terms (access required)

Lomax Construction, Inc. v. Triad Sheet Metal & Mechanical, Inc. Even if the plaintiff-general contractor made a qualified acceptance the defendant-subcontractor’s bid, the parties did not enter into a written contract, and the communications and conduct between the parties was insufficient to show that they formed an implied contract. Therefore, the contractor cannot make out a breach of contract claim based on the subcontractor’s refusal to stand by its bid once it realized the project owner had added a new component just before bids were due. We affirm summary judgment for the subcontractor.

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Contract – Limitations – Home Defects (access required)

Williams v. Houses of Distinction, Inc. A judge should not have dismissed, on statute of limitations grounds, breach of contract and warranty claims brought by the plaintiff purchasers of a home constructed by the defendant, where a genuine issue exists regarding when the plaintiffs knew or reasonably should have known about the damage.

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Contract – Materialmen’s Lien – County Property (access required)

Gaines & Company, Inc. v. Wendell Falls Residential, LLC A plaintiff that provided labor and materials for a wastewater pump station and a gravity sewer outfall at a residential subdivision now owned by Wake County cannot enforce its materialmen lien rights against the County. Gaines and Company, Inc., (Gaines) waived its materialmen’s lien rights prior to a conveyance of real property to Wake County, nor did it allege a contractual relationship between it and Wake County for work performed after the conveyance. Moreover, materialmen’s liens on public bodies and buildings are prohibited by statute. Therefore, Gaines may not enforce a lien on Wake County property. We affirm the trial court’s order granting summary judgment to Wake County.

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Civil Practice – Appeals – Interlocutory – Contract – Limitation of Damages – Home Inspection (access required)

Rioux v. Accurate Home Inspection, Inc. An order limiting plaintiff’s claim to the damages amount set out in the parties’ contract — $330 – is not the same as a final order. Despite the trial court’s certification for immediate appeal, the trial court has yet to decide the issues of whether defendants breached the contract or were negligent. Therefore, the trial court’s order granting partial judgment on the pleadings is interlocutory and is not immediately appealable.

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Contract – Risk of Loss – Mobile Home Sale – As Is/Where Is – Buyer’s Burden – UCC (access required)

Singletary v. P & A Investments, Inc. Even though a mobile home's title had not yet been transferred to the defendant-mobile homes dealer when the dealer sold the mobile home to plaintiff, since plaintiff bought the mobile home as is/where is, the risk of loss of the mobile home passed to plaintiff the moment the parties executed their sale contract. The Uniform Commercial Code, not the Motor Vehicles Act, controls the risk of loss here. We reverse the trial court's judgment for plaintiff.

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