Elec-Trol, Inc. v. C. J. Kern Contractors, Inc., ELEC-TRO
Decision Date | 17 November 1981 |
Docket Number | INC,ELEC-TRO,No. 8121SC315,8121SC315 |
Citation | 284 S.E.2d 119,54 N.C.App. 626 |
Court | North Carolina Court of Appeals |
Parties | , Plaintiff, v. C. J. KERN CONTRACTORS, INC., Defendant and Third-Party Plaintiff, v. NORTH CAROLINA BAPTIST HOSPITALS, INC., Third-Party Defendant. |
Adams, Kleemeier, Hagan, Hannah & Fouts by Walter L. Hannah and Bruce H. Connors, Greensboro, and Tornow & Lewis by Michael J. Lewis, Winston-Salem, for plaintiff-appellant.
Brooks, Pierce, McLendon, Humphrey & Leonard by James T. Williams, Jr., Greensboro, and Anthony H. Brett and Womble, Carlyle, Sandridge & Rice by Roddy M. Ligon, Jr., Winston-Salem, for defendants-appellees.
Plaintiff assigns as error the entry of summary judgment for the defendant and the third-party defendant. It argues that where the parties have not agreed that the architect's decisions are final, the subcontractor may bring an action for payment of certain accepted change order work when changes were ordered by the contractor and the architect either failed to rule on the change order requests or ruled erroneously.
In support of this argument the plaintiff relies on three theories, the first of which is that the contract and subcontract do not provide that the architect's determinations shall be final. We disagree.
The terms of the contract between the defendant and the third-party defendant, which terms were incorporated by reference into the contract between plaintiff and defendant, contained provisions governing the procedures by which claims for additional costs were to be determined. Section 12.2.1 of the General and Supplementary Conditions provided that "[i]f the Owner and the Contractor cannot agree on the amount of the adjustment in the contract sum, it shall be determined by the Architect."
The North Carolina courts have recognized that a provision in a contract, providing for the architect's approval before the contractor can recover compensation on his contract, is binding on the parties. When the contract so provides, the architect's certificate is a condition precedent to the contractor's recovery, absent a showing of bad faith or failure to exercise honest judgment. J. R. Graham and Son, Inc. v. Board of Education, 25 N.C.App. 163, 212 S.E.2d 542, cert. denied, 287 N.C. 465, 215 S.E.2d 623 (1975). In Heating Co. v. Board of Education, 268 N.C. 85, 89-90, 150 S.E.2d 65, 68 (1966) the Court stated as follows:
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...be a condition 49. See AIA Document A201–2007, supra note 2, § 15.2.5. 50. See, e.g., Elec-Trol, Inc. v. C. J. Kern Contractors, Inc., 284 S.E.2d 119 (N.C. Ct. App. 1981). 51. See SWEET & SCHNEIER, supra note 34, §§ 29.09–29.10. 52. See 5 BRUNER & O’CONNOR, supra note 15, § 17:83 (2006). 53......
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...be a condition 49. See AIA Document A201–2007, supra note 2, § 15.2.5. 50. See, e.g., Elec-Trol, Inc. v. C. J. Kern Contractors, Inc., 284 S.E.2d 119 (N.C. Ct. App. 1981). 51. See SWEET & SCHNEIER, supra note 34, §§ 29.09–29.10. 52. See 5 BRUNER & O’CONNOR, supra note 15, § 17:83 (2006). 53......