RPR & Associates, Inc. v. THE UNIVERSITY OF NC-CHAPEL HILL

• Decision Date: 15 October 2002
• Docket Number: No. COA01-1146.,COA01-1146.
• Citation: 570 S.E.2d 510,153 NC App. 342
• Court: North Carolina Court of Appeals
• Parties: RPR & ASSOCIATES, INC., a South Carolina Corporation, Plaintiff, v. THE UNIVERSITY OF NORTH CAROLINA-CHAPEL HILL and The North Carolina Department of Administration, Defendants.

570 S.E.2d 510

153 NC App. 342

RPR & ASSOCIATES, INC., a South Carolina Corporation, Plaintiff, v. THE UNIVERSITY OF NORTH CAROLINA-CHAPEL HILL and The North Carolina Department of Administration, Defendants.

No. COA01-1146.

Court of Appeals of North Carolina.

October 15, 2002.

Brian E. Upchurch, Raleigh, for plaintiff appellant-appellee.

Attorney General Roy Cooper, by Special Deputy Attorney General Thomas J. Ziko, for defendant appellant-appellee.

TIMMONS-GOODSON, Judge.

RPR & Associates, Inc. ("plaintiff") and the University of North Carolina at Chapel Hill ("defendant") appeal from judgment in favor of plaintiff for breach of contract by defendant. For the reasons set forth herein, we affirm in part and reverse in part the judgment of the trial court.

The procedural and factual history of this appeal is a lengthy one: On 15 January 1998, plaintiff filed a complaint in Wake County Superior Court against defendant, the State of North Carolina ("the State"), and the North Carolina Department of Administration ("the DOA"). The complaint alleged that plaintiff, a South Carolina corporation, entered into a contract with the State, by and through defendant and the DOA, for the purpose of constructing the George Watts Hill Alumni Center ("Alumni Center"), located on the campus of the University of North Carolina at Chapel Hill. The complaint set forth claims for breaches of contract and of warranty.

All three defendants thereafter filed motions to dismiss plaintiff's complaint pursuant to Rules 12(b)(1), (2), (4), (5) and (6) of the North Carolina Rules of Civil Procedure. After a hearing on the motions, the trial court entered an order granting the State's motion to dismiss pursuant to Rule 12(b)(5) for insufficient service of process. The trial court denied, however, the motions to dismiss filed by defendant and the DOA, which denials defendant and the DOA appealed to this Court on 12 August 1998.

Despite the appeal filed by defendant and the DOA, plaintiff continued to pursue its claims in the superior court. Defendant and the DOA resisted such proceedings, contending that their notice of appeal removed jurisdiction from the trial court pending resolution of the appeal. Plaintiff rejoined that, as the orders from which defendant and the DOA appealed were interlocutory and nonappealable, the notice of appeal did not deprive the trial court of jurisdiction or otherwise stay proceedings at the trial level.

On 8 September 1998, the trial court denied defendant's motion to stay proceedings pending resolution of the appeal. Defendant thereafter filed a petition for writs of certiorari and supersedeas with the Court of Appeals, and moved for a temporary stay of the trial court proceedings. Although this Court initially granted defendant's motion for a temporary stay, it dissolved the stay on 23 September 1998. The Court also denied defendant's petition for writ of supersedeas and dismissed the petition for writ of certiorari. On 30 September 1998, this Court denied a second motion filed by defendant for a temporary stay.

Defendant then filed petitions for writ of supersedeas and writ of certiorari with the Supreme Court, which petitions were denied. By order dated 12 October 1998, the Supreme Court also denied defendant's motion for temporary stay of the judgment of the Court of Appeals. On 15 October 1998, the Court of Appeals denied defendant's petition for writ of prohibition.

Defendant moved the trial court once more for a stay of proceedings, which motion was heard on 3 May 1999. Upon reviewing the repeated denials of defendant's motions by the appellate courts, as well as the 8 September 1998 order by the trial court denying a stay of proceedings, the trial court once again denied defendant's motion to stay proceedings. On 2 June 1999, the Court of Appeals denied further petitions by defendant for writ of supersedeas and prohibition.

On 6 October 1999, this Court heard the appeal by defendant and the DOA from the trial court's denial of their motions to dismiss plaintiff's complaint. See RPR & Assocs. v. State, 139 N.C.App. 525, 534 S.E.2d 247 (2000),

affirmed per curiam, 353 N.C. 362, 543 S.E.2d 480 (2001) (hereinafter "RPR I"). The first issue addressed by the RPR I Court was the interlocutory nature of the appeal. The Court concluded that, because the motion to dismiss was based in part on the doctrine of sovereign immunity, the denial of such motion affected a substantial right, thus rendering the decision of the trial court immediately appealable. See id. at 527, 534 S.E.2d at 250. Having determined that the appeal was properly before the Court, the Court proceeded to address the substantive issues of the case. Concluding that plaintiff had complied with all applicable statutory procedures, the Court held that defendant had waived its claim to sovereign immunity from suit by entering into the contract with plaintiff. The Court thus held that the trial court properly denied defendant's motion to dismiss. The Court filed its opinion on 15 August 2000.

On 22 November 1999 and 21 February 2000, after defendant's appeal had been heard in this Court, but before a decision had been filed, the merits of plaintiff's case came before the trial court. The parties presented evidence for more than two weeks, upon the conclusion of which the trial court entered a judgment one hundred and twenty pages in length. In its judgment, filed 1 May 2000, the trial court concluded that defendant had breached its contract with plaintiff, causing substantial monetary injury. The trial court assessed such damages against defendant as $851,058.38, with interest accrued in the amount of $748,931.37. It is from this judgment that defendant and plaintiff now appeal.

Defendant presents three issues on appeal, arguing that the trial court erred by (1) continuing to assert jurisdiction over the case after defendant filed its notice of appeal; (2) assessing interest in the judgment against defendant; and (3) awarding excessive monetary damages. Plaintiff also argues three issues on appeal, contending that the trial court erred in (1) failing to award damages on its "masonry" claim; (2) failing to award damages based on plaintiff's "excessive punchlist" claim; and (3) failing to make findings regarding an offset against the judgment granted to defendant. We first examine defendant's assignments of error.

I. Defendant's Appeal

Defendant argues that the trial court erred by (1) exercising jurisdiction over the case; (2) awarding interest; and (3) awarding damages in amounts unsupported by the evidence. We address these issues in turn.

A. Functus Officio

By its first assignment of error, defendant argues that the trial court had no jurisdiction over the case after defendant perfected its appeal, and that therefore, the trial court erred in entering judgment against defendant.

As a general rule, once a party gives notice of appeal, such appeal divests the trial court of its jurisdiction, and the trial judge becomes functus officio. See Bowen v. Motor Co., 292 N.C. 633, 635, 234 S.E.2d 748, 749 (1977)

; Sink v. Easter, 288 N.C. 183, 197, 217 S.E.2d 532, 541 (1975). Functus officio, which translates from Latin as "having performed his of her office," is defined as being "without further authority or legal competence because the duties and functions of the original commission have been fully accomplished." Black's Law Dictionary 682 (7th ed.1999). Thus, when a court is functus officio, it has completed its duties pending the decision of the appellate court. The principle of functus officio stems from the general rule that two courts cannot ordinarily have jurisdiction of the same case at the same time. See Wiggins v. Bunch, 280 N.C. 106, 110, 184 S.E.2d 879, 881 (1971).

It follows from the principle of functus officio that if a party appeals an immediately appealable interlocutory order, the trial court has no authority, pending the appeal, to proceed with the trial of the matter. See Patrick v. Hurdle, 7 N.C.App. 44, 45-46, 171 S.E.2d 58, 59 (1969)

. Where a party appeals from a non appealable interlocutory order, however, such appeal does not deprive the trial court of jurisdiction, and thus the court may properly proceed with the case. See Veazey v. Durham, 231 N.C. 357, 364, 57 S.E.2d 377, 382-83 (1950); T & T Development Co. v. Southern Nat. Bank of S.C., 125 N.C.App. 600, 603, 481 S.E.2d 347, 349,

disc. review denied, 346 N.C. 185, 486 S.E.2d 219 (1997). "[A] litigant cannot deprive the trial court of jurisdiction to determine a case on its merits by appealing from a nonappealable interlocutory order of the trial court." Velez v. Dick Keffer Pontiac-GMC Truck, Inc., 144 N.C.App. 589, 591, 551 S.E.2d 873, 875 (2001).

An interlocutory order is immediately appealable if such order affects a substantial right of the parties involved. See N.C. Gen.Stat. §§ 1-277(a), 7A-27(d) (2001). A right is substantial when it will clearly be lost or irremediably and adversely affected if the order is not reviewed before final judgment. See Cagle v. Teachy, 111 N.C.App. 244, 246, 431 S.E.2d 801, 802 (1993)

.

Admittedly the `substantial right' test for appealability of interlocutory orders is more easily stated than applied. It is usually necessary to resolve the question in each case by considering the particular facts of that case and the procedural context in which the order from which appeal is sought was entered.

Waters v. Personnel, Inc., 294 N.C. 200, 208, 240 S.E.2d 338, 343 (1978); see also Cagle, 111 N.C.App. at 246,

431 S.E.2d at 802 (noting that there are "[n]o hard and fast rules... for determining which appeals affect a substantial right"). The trial court has the authority, however, to determine whether or not its order affects a substantial right of the parties or is otherwise immediately appealable. See Utilities Comm. v. Edmisten, Attorney General, 291 N.C. 361, 365, 230 S.E.2d 671, 674 (1976); Veazey, 231 N.C. at 364,...