Opinion
No. COA02-1319
Filed 5 August 2003 This case not for publication
Appeal by plaintiff from judgment entered 11 October 2001 by Judge Donald W. Stephens in Wake County Superior Court. Heard in the Court of Appeals 10 June 2003.
Womble Carlyle Sandridge Rice, PLLC, by Pressly M. Millen for plaintiff-appellant. The Law Office of John T. Benjamin, Jr., by John T. Benjamin, Jr. and William E. Hubbard for defendant-appellee Kline Iron and Steel Co., Inc.
Wake County No. 00 CVS 658.
Plaintiff, Coastal Caisson Corporation, appeals an order allowing defendant Kline Iron and Steel Company's motion for partial summary judgment. For the reasons discussed herein, we affirm. Capitol Broadcasting contracted with Kline to construct a television tower on 14 August 1997. On 7 December 1998, Kline solicited a bid from plaintiff, an underground construction subcontractor, to install the foundations for the television tower. In soliciting the bid, Kline provided plaintiff with a subsurface report about the quality and competency of subsurface rock and soil. The report noted that the rock found at the tower base and other locations was "very competent" and that blasting would be necessary. In preparing its bid, plaintiff relied on the report in determining construction schedules, equipment and costs. Based on experience with rock formation as described in the report, plaintiff selected a pre-excavation drilling and blasting technique, caisson drilling equipment and estimated seven to eight weeks to complete the work.
Plaintiff submitted a bid for $547,210. Its proposal specifically stated that "[s]oil conditions which are different from those represented in the soils report may cause design changes and/or extra charges." Plaintiff reserved the right to make a claim for addition compensation or time. Kline requested a requote on 29 December 1998. Plaintiff submitted a second bid at $486,990. On 14 January 1999, Kline forwarded to plaintiff a purchase order which stated:
Foundation Contract for the WRAL-TV 1989 Ft.Tower in Auburn, N.C. per Foundation Contract Agreement to be forwarded upon completion and per your quote dated December 29, 1998 in the amount of $486,990.00 plus $7,304.85 for Performance and Payment Bond for a total of $494,294.85 as noted in Article Four, Price and Payment.
Work to begin approx. February 26, 1999.
Plaintiff and Kline entered into a written contract for the project, dated 1 February 1999, which was designated as the "Foundation Contract."
From February to May 1999, plaintiff discovered that subsurface conditions were materially different from the conditions described in the report. Because of the differences, plaintiff was unable to use the blasting technique and certain equipment as planned. On 3 June 1999, Kline authorized plaintiff to use a different technique and equipment to install the foundations. On 9 August 1999, plaintiff submitted a claim for additional compensation due to increased time and effort, with the use of special equipment and extra personnel. Plaintiff requested a total of $698,245 plus interest.
On 19 January 2000, plaintiff filed a complaint against Kline and Capitol Broadcasting, alleging breach of contract and quantum meruit and seeking to enforce its lien against funds owed to Kline by Capitol Broadcasting or to enforce its lien against Capitol Broadcasting's real property. Plaintiff had previously filed a claim of lien by a first tier subcontractor. On 18 February 2000, Capitol Broadcasting filed an answer, motion to dismiss and a cross claim against Kline for indemnity. On 24 March 2000, Kline filed an answer asserting six affirmative defenses: express terms of the contract, waiver, estoppel, void lien, and assumption of risk. Kline's answer also included a motion to dismiss and crossclaims against Capitol Broadcasting for indemnity, contribution, breach of contract and unjust enrichment. Kline further asserted a counterclaim against plaintiff for breach of contract.
On 24 August 2001, Kline filed a motion for partial summary judgment on the breach of contract and equitable claims raised against it by plaintiff. On 11 October 2001, the trial court granted Kline's motion for partial summary judgment. Plaintiff appeals.
Following the trial court's entry of summary judgment, all parties entered into a consent order resolving all issues between them with the exception of those in this appeal.
Summary judgment is proper when "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. Gen. Stat. § 1A-1, Rule 56(c) (2001). The moving party bears the burden of demonstrating the lack of triable issues of fact. Koontz v. City of Winston-Salem, 280 N.C. 513, 518, 186 S.E.2d 897, 901 (1972). Once the movant satisfies its burden of proof, the burden then shifts to the non-movant to present specific facts showing triable issues of material fact. Lowe v. Bradford, 305 N.C. 366, 369-70, 289 S.E.2d 363, 366 (1982). On appeal from summary judgment, "we review the record in the light most favorable to the non-moving party." Bradley v. Hidden Valley Transp., Inc., 148 N.C. App. 163, 165, 557 S.E.2d 610, 612 (2001), aff'd, 355 N.C. 485, 562 S.E.2d 422 (2002) (citing Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975)).
In its first assignment of error, plaintiff argues that the trial court erred in granting Kline's motion for partial summary judgment on the breach of contract claim. Plaintiff contends that material issues of fact remain on the question of whether the terms of the Foundation Contract allow plaintiff to make claims for additional compensation based on unexpected expenses. We disagree.
It is a well-settled rule of contract construction that "[i]ndividual clauses in an agreement and particular words must be considered in connection with the rest of the agreement, and all parts of the writing, and every word in it, will, if possible, be given effect." Robbins v. C. W. Myers Trading Post, Inc., 253 N.C. 474, 477, 117 S.E.2d 438, 440 (1960). Plaintiff contends that the provisions of its proposal, which allow it to make a claim for additional compensation should "actual conditions vary from those represented" were accepted by Kline and were not superceded by the terms of the Foundation Contract.
The purchase order sent by Kline to plaintiff clearly stated that the Foundation Contract would be "forwarded upon completion[.]" It was clearly contemplated that the agreement between Kline and plaintiff would be reduced to writing in the Foundation Contract. This was the final and only agreement between the parties. There was no interim agreement based upon plaintiff's bid and Kline's purchase order.
Paragraph 4.1(f) of the Foundation Contract provides that:
It is further agreed that the Contractor prior to entering into this contract has investigated the site and has satisfied itself that the price it has quoted is sufficient to perform the work and that the ground conditions and underground conditions are suitable for the performance of the work intended, so accordingly no claims shall be submitted by the Contractor for conditions existing at the surface or underneath the surface of the ground.
The Foundation Contract also contains clause 9.7, designated as "Interpretation of Contract." Section (a) of paragraph 9.7 provides that:
This Contract, including all written supplements and amendments hereto, constitutes the entire agreement of the parties hereto; no verbal agreement or conversation of the parties hereto shall affect or in any way modify any of the terms or conditions herein contained; and this Contract may only be supplemented and amended by written instrument executed on behalf of the parties authorized to do so.
This is a standard merger clause, "which is often used in contracts to merge prior discussions, negotiations, and representations into the written document [to] avoid litigation over the question of whether there were oral representations made outside the written agreement." Holcomb v. Holcomb, 132 N.C. App. 744, 750, 513 S.E.2d 807, 811 (1999). "North Carolina recognizes the validity of merger clauses and has consistently upheld them." Zinn v. Walker, 87 N.C. App. 325, 333, 361 S.E.2d 314, 318 (1987), rev. denied, 321 N.C. 747, 366 S.E.2d 871 (1988). Thus, in the instant case, all prior negotiations and proposals of the parties were superceded by the provisions of the Foundation Contract, which was the final written agreement between the parties.
Plaintiff further asserts that there is an issue of fact as to whether the Foundation Contract was a novation of a prior agreement between plaintiff and Kline. As discussed earlier, there was no earlier agreement between the parties. The Foundation Contract thus could not act as a novation. See Whittaker General Medical Corp. v. Daniel, 324 N.C. 523, 379 S.E.2d 824, reh'g denied, 325 N.C. 277, 384 S.E.2d 531 (1989). This assignment of error is without merit.
In its second assignment of error, plaintiff argues that the trial court erred in granting summary judgment to Kline because a material issue of fact exists as to whether it is entitled to recover in quantum meruit for services rendered in accordance with the unexpected soil conditions. We disagree.
Quantum meruit is recoverable for the reasonable value of services rendered in order to prevent unjust enrichment. Potter v. Homestead Preservation Ass'n, 330 N.C. 569, 578, 412 S.E.2d 1, 7 (1992). However, quantum meruit is not an appropriate remedy when there is an actual agreement between the parties. Booe v. Shadrick, 322 N.C. 567, 570, 369 S.E.2d 554, 556, reh'g denied, 323 N.C. 370, 373 S.E.2d 540 (1988). In the instant case, there was clearly an actual agreement between the parties. Consequently, this assignment of error is without merit.
AFFIRMED.
Chief Judge EAGLES and Judge TYSON concur.
Report per Rule 30(e).