Dickerson Carolina, Inc. v. Harrelson

• Decision Date: 17 May 1994
• Docket Number: No. 9310SC296,9310SC296
• Citation: 114 N.C.App. 693,443 S.E.2d 127
• Court: North Carolina Court of Appeals
• Parties: DICKERSON CAROLINA, INC. v. Thomas J. HARRELSON, in his individual capacity and as Secretary of the North Carolina Department of Transportation and as Chairman of the North Carolina Board of Transportation, D.W. Bailey, in his individual capacity and as Chairman of the MBE Goal Compliance Committee of the North Carolina Department of Transportation, B.G. Jenkins, in his individual capacity and as a member of the MBE Goal Compliance Committee of the North Carolina Department of Transportation, Bob Brown, in his individual capacity and as a member of the MBE Goal Compliance Committee of the North Carolina Department of Transportation, William R. Brown, P.E., in his individual capacity and as a member of the MBE Goal Compliance Committee of the North Carolina Department of Transportation, William A. Perry, Jr., in his individual capacity and as a member of the MBE Goal Compliance Committee of the North Carolina Department of Transportation, J.O. Murphy, in his individual capacity and as a member of the MBE Goal Compliance Committee of the North Carolina Department of Transportation, Philip P. Godwin, in his individual capacity and as a member of the North Carolina Board of Transportation, Ken Newsom, in his individual capacity and as a member of the North Carolina Board of Transportation, Jefferson B. Strickland, in his individual capacity and as a member of the North Carolina Board of Transportation, Elwood Goodson, in his individual capacity and as a member of the North Carolina Board of Transportation, Jack A. Laughery, in his individual capacity and as a member of the North Carolina Board of Transportation, W. Cary Livesay, in his individual capacity and as a member of the North Carolina Board of Transportation, Albert McCauley, in his individual capacity and as a member of the North Carolina Board of Transportation, Charles Lowdermilk, in his individual capacity and as a member of the North Carolina Board of Transportation, F. Hudnall Christopher, in his individua

Page 127

443 S.E.2d 127

114 N.C.App. 693

DICKERSON CAROLINA, INC. v. Thomas J. HARRELSON, in his individual capacity and as Secretary of the North

Carolina Department of Transportation and as Chairman of the North Carolina

Board of Transportation, D.W. Bailey, in his individual capacity and as

Chairman of the MBE Goal Compliance Committee of the North Carolina Department

of Transportation, B.G. Jenkins, in his individual capacity and as a member of

the MBE Goal Compliance Committee of the North Carolina Department of

Transportation, Bob Brown, in his individual capacity and as a member of the

MBE Goal Compliance Committee of the North Carolina Department of

Transportation, William R. Brown, P.E., in his individual capacity and as a

member of the MBE Goal Compliance Committee of the North Carolina Department

of Transportation, William A. Perry, Jr., in his individual capacity and as a

member of the MBE Goal Compliance Committee of the North Carolina Department

of Transportation, J.O. Murphy, in his individual capacity and as a member of

the MBE Goal Compliance Committee of the North Carolina Department of

Transportation, Philip P. Godwin, in his individual capacity and as a member

of the North Carolina Board of Transportation, Ken Newsom, in his individual

capacity and as a member of the North Carolina Board of Transportation,

Jefferson B. Strickland, in his individual capacity and as a member of the

North Carolina Board of Transportation, Elwood Goodson, in his individual

capacity and as a member of the North Carolina Board of Transportation, Jack

A. Laughery, in his individual capacity and as a member of the North Carolina

Board of Transportation, W. Cary Livesay, in his individual capacity and as a

member of the North Carolina Board of Transportation, Albert McCauley, in his

individual capacity and as a member of the North Carolina Board of

Transportation, Charles Lowdermilk, in his individual capacity and as a member

of the North Carolina Board of Transportation, F. Hudnall Christopher, in his

individual capacity and as a member of the North Carolina Board of

Transportation, Jim Nance, in his individual capacity and as a member of the

North Carolina Board of Transportation, Ernest Barry, Jr., in his individual

capacity and as a member of the North Carolina Board of Transportation,

Richard Vaughn, in his individual capacity and as a member of the North

Carolina Board of Transportation, John B. Beall, in his individual capacity

and as a member of the North Carolina Board of Transportation, Dean Proctor,

in his individual capacity and as a member of the North Carolina Board of

Transportation, J.A. Dalpiaz, in his individual capacity and as a member of

the North Carolina Board of Transportation, David Brown, in his individual

capacity and as a member of the North Carolina Board of Transportation, C.W.

Hardin, in his individual capacity and as a member of the North Carolina Board

of Transportation, and Crowder Construction Company, Defendants.

No. 9310SC296.

Court of Appeals of North Carolina.

May 17, 1994.

Smith Helms Mulliss & Moore by Douglas W. Ey, Jr., Paul K. Sun, Jr. and Matthew W. Sawchak, Charlotte, for plaintiff-appellant.

Atty. Gen. Michael F. Easley by Sr. Deputy Atty. Gen. Edwin M. Speas, Jr., Sr. Deputy Atty. Gen. Reginald L. Watkins, Sp. Deputy Atty. Gen. Grayson G. Kelley, and Sp. Deputy Atty. Gen. Tiare B. Smiley, Raleigh, for defendant-appellee.

WYNN, Judge.

In 1990 the North Carolina Department of Transportation (NCDOT) solicited bids for Project 6.671043, construction of a highway interchange, in Mecklenburg County. All bidders were subject to N.C.Gen.Stat. § 136-28.4, "State Policy Concerning Participation by Disadvantaged Businesses in Highway Contracts." Amended in July 1990, this statute set a 10% goal for contract participation by businesses owned or controlled by minorities (MB's) and a 5% goal for businesses owned or controlled by women (WB's). The statute provides:

(a) It is the policy of this State to encourage and promote participation by disadvantaged businesses in contracts let by the Department pursuant to this Chapter for the design, construction, alteration, or maintenance of State highways, roads, streets, or bridges and in the procurement of materials for these projects. All State agencies, institutions, and political subdivisions shall cooperate with the Department of Transportation and all other State agencies institutions, and political subdivisions in efforts to encourage and promote the use of disadvantaged businesses in these contracts.

(b) A ten percent (10%) goal is established for participation by minority businesses and a five percent (5%) goal for participation by women businesses is established in contracts let by the Department of Transportation for the design, construction, alteration, or maintenance of State highways, roads, streets or bridges and for the procurement of materials for these projects. The Department of Transportation shall endeavor to award to minority businesses at least ten percent (10%), by value, of the contracts it lets for these purposes, and shall endeavor to award to women businesses at least five percent (5%), by value, of the contracts it lets for these purposes. The Department shall adopt written procedures specifying the steps it will take to achieve these goals. The Department shall give equal opportunity for contracts it lets without regard to race, religion, color, creed, national origin, sex, age, or handicapping condition, as defined in G.S. 168A-3, to all contractors and businesses otherwise qualified.

(c) The following definitions apply in this section:

(1) "Disadvantaged business" has the same meaning as in 49 C.F.R. § 23.62.

(2) "Minority" has the same meaning as in 49 C.F.R. § 23.5.

N.C.Gen.Stat. § 136.28.4 (1993).

NCDOT implemented this statute in a document entitled "Project Special Provision Minority Businesses" (PSP) on or about 17 July 1990. The PSP established contract participation goals for MBs and WBs and required that each contractor subject to the PSP take all necessary and reasonable steps to achieve these goals. The PSP further provided that if a low bidder's bid did not meet the designated set-aside percentages, it could submit information documenting its "good faith effort" to meet the goals. The PSP authorized NCDOT to reject a bid if the low bidder failed to demonstrate an adequate good faith effort to meet the contract goals. NCDOT established a Goals Compliance Committee (GCC), composed of senior officials, to implement the set-aside goals and evaluate the bidders' good faith efforts.

On 19 February 1991, NCDOT opened the bids on Project 6.671043 and found plaintiff Dickerson Carolina, Inc. to be the lowest bidder with a bid of $5,322,119.82. The second lowest bid, submitted by Crowder Construction Company (Crowder), was $88,743.58 higher. The GCC determined, however, that Dickerson had not shown an adequate good faith effort to include minority and women businesses' participation in its bid. On 1 March 1991, the North Carolina Board of Transportation, which approves the award of highway construction contracts, followed the GCC's recommendation and unanimously rejected Dickerson's bid. The Board then awarded the contract to Crowder.

Dickerson brought this action against the Secretary of the Department of Transportation and members of the Board of Transportation and of the GCC, seeking injunctive relief and monetary damages against defendants in their official and individual capacities for violations of Dickerson's federal and state constitutional rights. In its complaint Dickerson alleged that N.C.Gen.Stat. § 136-28.4 is unconstitutional on its face and as applied and that defendants, acting pursuant to the PSP, violated Dickerson's rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution, Article I, Section 19 of the North Carolina Constitution, and 42 U.S.C. § 1981. Dickerson charged that defendants' actions denied it the right to compete on an equal basis for the construction contract. Dickerson asserted that due to these violations it was entitled to damages under 42 U.S.C. § 1983.

Dickerson moved for summary judgment as to the constitutional claims, and defendants moved for summary judgment as to all of plaintiff's claims under the United States Constitution, the North Carolina Constitution, and 42 U.S.C. §§ 1981 and 1983. The trial court granted defendants' motion and denied plaintiff's motion. The trial court then designated the order a final judgment as to those claims, pursuant to N.C.Gen.Stat. § 1A-1, Rule 54(b), and ruled there was no just reason to delay the final adjudication of these claims. From this order, plaintiff appeals.

I.

Dickerson first argues that N.C.Gen.Stat. § 136-28.4 and the PSP are unconstitutional as violations of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and under Article I, section 19 of the North Carolina Constitution. Dickerson contends the United States Supreme Court's decision in City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) requires that a minority set-aside program serve a compelling state interest and that the statute and the regulations fail this test. We conclude, however, that since NCDOT has changed its minority set-aside program in response to a finding by the General Assembly of historical discrimination in the highway construction industry, plaintiff's constitutional challenge in the instant case is now moot.

"Whenever, during the course of litigation it develops that the relief sought has been granted or that the questions originally in controversy between the parties are no longer at issue, the case should be dismissed, for courts will not entertain or proceed with a cause merely to determine abstract propositions of law." In re Peoples, 296 N.C. 109, 147, 250 S.E.2d 890, 912 (1978), cert. den...