Outer Banks Contractors, Inc. v. Forbes

• Decision Date: 07 April 1981
• Docket Number: No. 50,50
• Parties: OUTER BANKS CONTRACTORS, INC. v. Sarah E. FORBES and Reggie Owens.
• Court: North Carolina Supreme Court

Page 375

276 S.E.2d 375

302 N.C. 599

OUTER BANKS CONTRACTORS, INC. v. Sarah E. FORBES and Reggie Owens.

No. 50.

Supreme Court of North Carolina.

April 7, 1981.

Aldridge, Seawell & Khoury by Daniel D. Khoury, Manteo, for plaintiff-appellee.

Shearin, Gaw & Archbell, by Norman W. Shearin, Jr., Kitty Hawk, and Ralph T. Baker, Newport News, Va., for defendants-appellants.

BRITT, Justice.

Although defendant Forbes' petition to this court for discretionary review of the decision of the Court of Appeals did not expressly ask that our review be limited to that part of the decision which was adverse to her, a request for that limitation is obviously implied. Plaintiff did not petition for discretionary review of the portion of the decision which was adverse to it, namely, the affirmance of summary judgment in favor of defendant on the claim for enforcement of a lien. In its new brief plaintiff raises no question relating to the correctness of the Court of Appeals' holding on the lien claim. Rule 16(a) of the Rules of Appellate Procedure provides that the scope of our review of decisions of the Court of Appeals shall be "limited to consideration of the questions properly presented in the new briefs required by Rules 14(d)(1) and 15(g)(2) to be filed in the Supreme Court." Therefore, the only question presented to us is whether the Court of Appeals erred in reversing the entry of summary judgment in favor of defendant Forbes on the claim for a money judgment. We agree with the decision of the Court of Appeals.

In its complaint, plaintiff alleged that pursuant to an indivisible contract entered into between it and defendant Forbes, it furnished labor and materials for which defendant Forbes had agreed to pay $3,478.50; and that defendant had failed to pay said indebtedness. Plaintiff attached to its complaint, as an exhibit, an itemized statement of the labor and materials which had been furnished.

In her answer defendant Forbes denied entering into the contract. Following the conclusion of discovery proceedings, she moved for summary judgment. In an affidavit, she stated that

3) I entered into a written agreement dated March 17, 1972, with R. D. Owens, an additional defendant in this action, for the construction by Mr. Owens of the improvements described (as The Laughing Gull Cottage Court) ....

4) The aforesaid written contract with Mr. Owens was the sole contract entered into by me regarding the labor and materials which plaintiff alleges in its complaint were furnished to the real property owned by me. I have not entered into any contract, written or oral, with Outer Banks Contractors, Inc., the plaintiff, for the furnishing of labor and materials as alleged in plaintiff's complaint. All my dealings of a contractual nature regarding the matter in controversy were with Mr. R. D. Owens.

In opposition to defendant Forbes' motion for summary judgment, plaintiff offered its answers to interrogatories propounded to it by the movant. Answering on behalf of plaintiff corporation, Alvis Beacham, the president of the firm, stated that on or about 1 April 1977 (sic) ², he entered into an oral contract with defendant Forbes; that the contract was entered into at defendant Forbes' property; that plaintiff was to "perform certain improvements with regard to a driveway or parking facilities for tenants of the defendant"; and that plaintiff was to be paid for its work.

Defendant Forbes argues that she was entitled to the entry of summary judgment on plaintiff's contract claim for two reasons. We find neither contention persuasive.

First, she contends that although plaintiff had the opportunity to come forward with specific facts upon which to base the conclusion that a contract existed between it and defendant Forbes, it failed to do so. We disagree. While the answers to defendant Forbes' interrogatories do not establish the precise details of the work which was to be performed, the answers do establish the substance of a contractual claim. It should be noted that plaintiff's exhibit A, a part of the complaint, is a component of the record of this case. At the hearing on the motion for summary judgment, that exhibit was competent evidence of several of the precise details of the contract to which the answers of the interrogatories do not speak. Exhibit A is a statement from plaintiff to defendant Forbes dated 11 June 1973. According to the statement, plaintiff furnished materials to defendant Forbes for the construction project in the form of clay base, sand, and stone. The quantities of the various materials which were furnished, as well as the price which was charged for each, are detailed by the statement. The dates upon which the materials were furnished at the site are also embodied by the document. The statement also indicates that defendant Forbes was furnished with the use of a bulldozer on four occasions, as well as the use of a motorgrader on one occasion. Again, the dates upon which these services were provided, as well as their respective costs, are embodied in the statement. Since the statement would have been competent evidence, see Kessing v. National Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971), it would have been proper for the trial court to have considered it in passing upon defendant Forbes' motion. We hold that plaintiff did not fail to come forward with evidence of specific facts with which to resist defendant's motion for summary judgment.

Second, defendant Forbes contends that the order consented to by the parties on 9 January 1976 amounts to a judicial admission which serves to establish conclusively the relationship of the parties to this litigation. She argues that Owens was her general contractor, that plaintiff was his subcontractor, and that there was no contractual relationship between her and plaintiff.

The consent order of 9 January 1976 does not amount to a judicial admission. It will be recalled that the order recited that defendant Forbes was the owner of the real property in question, that defendant Owens was the general contractor for making certain improvements thereon, and that plaintiff was a subcontractor who had furnished labor and materials in connection with the project. While it is manifest that plaintiff consented to the entry of the order through its attorney of record, it cannot be fairly said to amount to a stipulation which serves to unalterably fix the rights and liabilities of the parties to one another.

A judicial admission is a formal concession which is made by a party in the course of litigation for the purpose of withdrawing a particular fact from the realm of dispute. See generally 2 Stansbury's North Carolina Evidence § 166 (Brandis Rev. 1973). Such an admission is not evidence, but it, instead, serves to remove the admitted fact from the trial by formally conceding its existence. E. g., State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971). Stipulations are viewed favorably by the courts because their usage tends to simplify, shorten, or settle litigation, as well as save costs to litigants. Rickert v. Rickert, 282 N.C. 373, 193 S.E.2d 79 (1972); Rural Plumbing and Heating, Inc. v. H. C. Jones Construction Co., 268 N.C. 23, 149 S.E.2d 625 (1966); Chisolm v. Hall, 255 N.C. 374, 121 S.E.2d 726 (1961). Yet, the effect or operation of a stipulation will not be extended by the courts beyond the limits set by the parties or by the law. Rickert v Rickert, supra; Lumber Co. v. Lumber Co., 137 N.C. 431, 49 S.E. 946 (1905). In determining the extent of the stipulation, it is appropriate to look to the circumstances under which it was entered, as well as to the intentions of the parties as expressed by the agreement. Rickert v. Rickert, supra. Stipulations will receive a reasonable construction so as to effect the intentions of the parties, but in ascertaining the intentions of the parties, the language employed in the agreement will not be construed in such a manner that a fact which is obviously intended to be controverted is...